text:
    TRIAL FOR. HOMICIDE.
    [Circuit Court of Morgan. County.]
    Wilbur E. Wray v. The State of Ohio.
    Decided, November, 1904.

      Criminal Law — Statement by Counsel for the State as to what He Expects to Prove — Not Misconduct Becaxise the Evidence is Held Incompetent, When — Effect of Failure to Bequest Charge — Homicide — Indictment—Two Mortal Wounds — Proof as to — Self Defense.

    1. In a criminal case, where counsel for the state, in his statement of the case under Section 7300, Revised Statutes, in good faith refers to evidence he expects to offer in support of the charge against the defendant, and it turns out that such evidence is incompetent, and is not admitted, or offered, and, objection being made at the time, the count overruled the objection, it is not such an abuse of privilege on the part of counsel and discretion in the court as will constitute ground for reversal.
    2. It is not error for a trial court to omit to instruct the jury on a point of law arising in the case unless counsel request instructions to be given on such point.
    3. Where, in an indictment for murder in the first degree, it is charged that there were two shots fired and two mortal wounds inflicted from which death resulted, the state is not compelled to prove, beyond a reasonable doubt, that either the first or second shot alone produced the death, nor, if the death result only from the ■combined effects or resujts of both shots, that each of said shots were fired unlawfully.
    4. Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death, or great bodily harm, and that his only means of escape from such danger will be by taking the .life of his assailant, although in fact he is mistaken as to the existence or imminence of danger. Morts v. State, 26 0. St., 162, followed.
    Voorhees, J.; McCarty, J., and Winch, J. (sitting in place of Donabne, J., concur).
    Error to the Court of Common Pleas of Morgan County.
   Plaintiff in error was indicted at the October Term, 1903, of the Court of Common Pleas of Morgan County, Ohio, for the murder of William Farris on July 31, 1903. At the January Term, 1904, of said court, he was tried and convicted of manslaughter under said indictment and ‘sentenced to the penitentiary for the term of six years. Error is prosecuted to this court, and numerous grounds are assigned for the reversal of the judgment. Among the errors assigned, and specially urged as grounds for reversal, are:

1. That the court erred in permitting the assistant prosecuting attorney to make and include improper matter in the opening statement of the case on behalf of state to the jury.
2. That the court erred in its charge to the jury.
3. That the court erred in refusing to give to the jury charges requested by the plaintiff in error.
4. That the verdict of the jury is not supported by the evidence, and is against the weight of the evidence.

There are other errors assigned, but the four above named are the errors urged in argument.

We will consider the errors in the order named.

As to the misconduct of the assistant prosecuting attorney in stating the claims of the state preceding the introduction of any testimony.

The alleged misconduct consists in this: In stating the claims of the state before the introduction of any evidence, under Section 7300, Revised Statutes, the counsel said, “that defendant (meaning plaintiff in error) brought with him, in addition to this infatuation for the girl, a letter from his wife begging him to return to his home and provide for her and her child, and another from his mother saying to him, that she hoped he would have the honor to go back home, provide for his wife and child; return to the habitation of his little boy, and the abode of his wife.”- To which statement defendant by his counsel objected. The court overruled the objection, and exceptions were noted.

The attorney for the state then further stated to the jury the following: “Pie (referring to the deceased, William Farris) was a man who had a right to pay her (referring to Sadie Gilbert) attention, and to have her if she was willing.” To which statement objection was made, overruled, and exceptions noted.

Under Section 7300, Revised Statutes, providing the order ■of proceeding in criminal trials, among other things, provides that, after the jury is impanneled and sworn, the trial shall proceed in the following order:

1. The counsel for the state must state the case of the prosecution, and may briefly state the evidence by which he expects to sustain it.
2. The defendant, or his counsel, must then state his defense, and máy briefly state the evidence he expects to offer in support of it.

The alleegd objectionable statements of the assistant prosecuting attorney were made under the first subdivision of the section, and it is contended by plaintiff in error that the letters and statements referred to were not competent evidence on behalf of the state, and notwithstanding the fact they were not admitted in evidence he was prejudiced thereby, and by the action of the trial court in not sustaining his objections thereto.

This is all that the record shows concerning this alleged error. The plaintiff in error presented no special requests to the court touching these matters, nor did the court in its general ■charge refer to them. We are to consider the grounds of error raised by setting out the objectionable statements complained of, and that defendant below objected to the statements at the time they were made, and the court overruled the objections:

Was there an abuse of privilege by the attorney for the state, in stating, at the threshold of the trial, matters that were not .admitted in evidence in.the further progress of the trial, and ■which could not in any event become competent? We state the proposition thus, because it is the most favorable to the plaintiff in error. This raises the question, whether in a criminal case, where counsel for the state, in his statement of the case under Section 7300, Revised Statutes, refers to evidence he expects to offer in support of the charge against the defendant, and it turns out that such evidence is incompetent, and is not admitted, or offered, and objection being made at the time, the court overrules the objection, it is of such an abuse of privilege on the part of counsel and discretion in the court as to be ground for reversal.

First, as to it being an abuse of- privilege on the part of counsel. Suppose counsel in good faith, and there is nothing in this record to show bad faith on the part of the assistant prosecuting attorney, should say to the jury in his opening statement that he expects the evidence to show a certain fact, and names the witness or witnesses by whom he expects to prove the same, but when the witness is called he fails to so testify, it would not be claimed for a moment that this would be an abuse of privilege.

Again, suppose the facts or matters referred to, when the whole transaction under investigation is developed, are rendered incompetent for any reason as evidence, would this be an abuse of privilege? We think not.

Would it be an abuse of discretion in the court to overrule objections to such statements in advance of knowing the true or real connection or relation that such matters may have, or bear, on the transaction under investigation?

It is sought to apply the rule here that is established for the regulation of counsel in the argument of cases, and the discretion of the court therein as applied in the case of Hayes v. Smith, 62 O. St., 161.

The principles laid down in the case just cited have application to the final argument of the case, after the testimony is closed. Then for counsel to make statements of alleged facts hot adduced in evidence, and comments thereon, are irrelevant, not pertinent, and are, therefore, clearly not'within the privilege of counsel. We do not think the same strict rule should apply when the counsel is only stating what he expects the evidence will be or will show.

But, if there were a violation of the rule in this case, the judgment ought, not to be reversed on that ground unless it appear that there was such abuse of discretion as to have deprived the plaintiff in error of a fair trial (Adams v. State, 25 O. St., 584, 586); and this court, being of opinion that this ground of error is not well taken, will proceed to the examination of other assigned errors.

That the court erred in its charge.

It is contended by plaintiff in error that the court erred in its general charge in this: (1) The court did not explain to the jury, as it should, that every person has a right at all times and under all circumstances and conditions, to carry a weapon, a revolver, provided it is not concealed; (2) the court erred in its charge when it announced to the jury, “The defendant admits that he fatally shot William Farris.”

The first objection is not a complaint as to what the court did charge, but what it failed to charge. The plaintiff in error did not ask any such charge as he complains was not given. It is not error for the court to omit to instruct the jury, on a point of law arising in the case, unless instructions are asked by counsel (Taft v. Wildman, 15 O. R., 123; Jones v. Ohio, 20 O. R., 34; Hill v. Luding et al, 46 O. St., 375, 377; Hoppe v. Parmalee, 20 Cir. Ct. [Ohio], 303 (affirmed by Supreme Court without report, 65 O. St., 614); Steen v. Friend, 20 Cir. Ct. [Ohio], 459, 465; Mitchell v. State, 21 Cir. Ct. [Ohio], 24). This disposes of this question, and we do not stop to inquire whether such instruction would have been proper or not, if it ■had been requested.

Second, was it error for the court to say, in view of all the evidence, and especially the statements made by the plaintiff in error, that “the defendant admits that he fatally shot William Faris”? Taking the testimony of Wray alone, there is no other conclusion to be reached than that he fired two shots from a revolver that he had and held while in a struggle with the deceased, William Farris. The only thing not specifically admitted by the defendant, as to the act of shooting, is as to the effect of the shooting. He contends all through that the shooting was not unlawful because done in self-defense. Did the two shots that were fired take effect in the body of Farris? Did they, or either of them, cause the death of Farris?

Both of these questions must be answered in the affirmative beyond a reasonable doubt from the evidence. This being so, it could not be and was not prejudicial to the defendant, when the court said to the jury, “the defendant admits that he fatally shot Farris.” If the shooting was not unlawful, he was not guilty, although he fatally shot the deceased.

We think the court followed the statements complained of, with correct instructions as to the law of self-defense; and in view of the evidence, and the claims made by the defendant himself, as to what occurred and how it occurred, he was not prejudiced by the court saying that “he admits he fatally shot William Farris.”

We think there is no error in the charge of the court as given.

Did the court err in refusing to give the requests, or any of them, asked by the defendant?

The defendant submitted ten requests, each of which the court refused, and the defendant excepted. The indictment was for murder with but a single count, which charges the crime (omitting the formal parts) as follows:

“That Wilbur E. Wray, late of said county, on the thirty-first day of July, in the year of óur Lord one thousand nine hundred and three, at the county of Morgan aforesaid, in and upon one William Farris, then and there being, did unlawfully, purposely, and of deliberate and premeditated malice, make and assault, in a menacing manner, with intent him, the said William Farris, unlawfully, purposely, and of deliberate and premeditated malice, to kill and murder-; and that the said Wilbur E. Wray, a certain pistol then and there charged w-ith. gunpowder and certain leaden bullets, which said pistol he, the said Wilbur E. Wray, then and there in his right hand had and held, then and there, unlawfully, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, against and upon the said William Farris, with the intent aforesaid, and that the said Wilbur E. Wray with the leaden bullets aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said Wilbur E. Wray then and there discharged and shot off as aforesaid, him, the said William Farris, in and upon the left side of the belly of him, the said William Farris, then ana there unlawfully, purposely, and of deliberate and premeditated malice did strike, penetrate, and wound, with the intent .aforesaid, thereby then and there giving to him, the said William Farris, with the leaden bullets aforesaid, so as aforesaid discharged, and shot out of the pistol aforesaid, by the said Wilbur E. Wray, in and upon the left side of the belly of him, the ■said William Farris, two mortal wounds, the length and breadth of said mortal wounds, and each of them, being to the jurors aforesaid unknown, of which said mortal wounds he, the said William Farris, afterward and on the second day of August, in said year-of our Lord one thousand nine hundred-and three, and in the county of Muskingum, and in said state of Ohio, died; and so the jurors aforesaid, upon their oaths aforesaid, do ■say that the said Wilbur E. Wray, him, the said William Farris, in said county of Morgan, at the time, in the manner and by the means aforesaid, unlawfully, purposely, and of deliberate .and premeditated malice, did kill and murder.”

It is contended by plaintiff in error, as it is charged in the indictment, there were two shots fired, and that the state must prove beyond a reasonable doubt either the first or second shot .alone produced the death, but, if the death only result from the combined effects or results of both shots, then before there can be a conviction of the grades of crime charged in the indictment, including the grade of manslaughter, the state must show beyond a reasonable doubt, and the jury must so find, that each •of said shots were fired unlawfully.

We do not agree with this contention. The testimony in this case shows that both shots were fired by the defendant while he was engaged in a single conflict or struggle with the deceased, and without any discontinuance of the conflict, or either party withdrawing therefrom. The question of the lawfulness or unlawfulness of both shots depends-upon the same state of facts .and upon the same evidence. From this record, it does not appear, upon any hypothesis, that one of these shots could have been lawful and the other unlawful; therefore, the evidence not having distinguished between the shots, it was unnecessary for the trial court to do so in its charge. If, in the conflict, the defendant unlawfully fired a shot, which produced death, either .alone or in combined effect with another shot fired by him in the same struggle, the jury may find him guilty under this .indictment.

The indictment is not bad for duplicity; and, although the shots were both fired while the defendant and deceased were engaged in a struggle or conflict, if the defendant unlawfully fired one or both shots, thereby killing the deceased, he could be rightfully convicted of manslaughter if the jury found death resulted from such unlawful act. Taking this view of the law, the court is of opinion that there was no error in the court refusing each and all of the ten requests asked by defendant, plaintiff in error.

That the verdict of the jury is not supported by sufficient evidence.

The defendant was found guilty of manslaughter only; and it is contended, by plaintiff in error, that the verdict is not supported by sufficient evidence. The record is a very voluminous one, and we have taken the time, and with care and labor have gone through and carefully examined the whole record. There is much of the record that does not bear directly on the main question, or defense, involved. There are many circumstances introduced in evidence, tending to throw light upon the transaction up to the time the final tragedy occurred, resulting in the death of William Farris.

It is contended by the plaintiff in error that, when he fired the shots that wounded the deceased, and which it is claimed by the state produced his death, he was acting in self-defense. The evidence is conflicting on this question.

Our Supreme Court, in the case of Morts v. State, 26 O. St., 162, held:

“Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although, in fact, he is mistaken as to the existence or imminence of the danger.”

It is contended by the state that, when the defendant fired the shots, or at least the first shot, he believed Farris wanted to get from him his ‘ ‘ gun, ’ ’ or revolver, and that he would be able to take the “gun,” and these were the only things he thought of until he fired the shot. In other words, the state contends, from the whole evidence, and the explanation given by the defendant himself, that the reason why he shot was, that he believed Farris would and could take from him his ‘ ‘ gun, ’ ’ and not that he believed, and had reasonable ground to believe, that he was in imminent danger of death, or great bodily harm, and that his only means of escape from such danger' was in the use of his weapon.

L. J. Weber and M. E. Danford, for plaintiff in error. '

Alfred H. Mercer, Prosecuting Attorney, and Charles H. Fonts, for the state.

The jury found the issue thus made against the defendant, and we can not, consistently with the rule of law, say from a careful examination of all the evidence that they were manifestly wrong in so finding.

Other grounds of error are alleged, but we do not regard them as being of sufficient gravity to warrant a reversal or extended consideration.

The court has reached a unanimous conclusion upon all the questions involved; and, without attempting to review the record in detail, we are of the opinion the judgment should be affirmed with costs; execution is awarded and the cause remanded accordingly.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    DELINQUENT PAYMENTS TO BENEFICIAL ASSOCIATION.
    [Circuit Court of Lucas County.]
    Kate Pete v. Woodmen of the World.
    Decided, March 10, 1904.

      Life Insurance — Rules Controlling Beneficial Associations — Member of,. Conclusively Presumed to Know, When — Acceptance of Delinquent Assessments — Does not Estop Association from Refusing Future Delinquencies — Payment after Fatal Injury too Late, When —Ipso Facto Suspension of Member not Waived by General Call for Assessment — Local Agent can not Extend Time for Payment of Assessment.

    1. A member of a beneficial association in whose application for membership and a certificate of insurance it is stipulated that such certificate shall become null and void in event of his failure to comply with all the laws and rules of the association, and whose certificate also contains a stipulation that it is issued and accepted “subject to all the laws, rules and regulations” of the association, and “shall be null and void if said sovereign (the member) does mot comply with all * * * the laws, rules and regulations of the Sovereign,, Camp,” and that if the .“dues and beneficiary fund assessment levied against the person named in the certificate by the association are not paid as required by the-constitution and laws of the order, this certificate shall be null and void” is conclusively presumed to have knowledge of the provisions of such constitution, laws, rules and regulations, and to-have assented thereto, and he is bound thereby.
    2. "Where the laws of the order in. such case provide for suspension and loss of benefits in case the member shall be delinquent with respect to payment of assessments, and he is so delinquent, the-fact that a local secretary may have irregularly and without authority received from the member or the beneficiaries on former occasions payments of assessments with respect to which the member was delinquent, and may have reported the reinstatement of the member, and the further fact that the general officers of the association, in ignorance of such unauthorized and irregular acts on the part of the local secretary, may have received the delinquent assessments thus collected, will not estop the association from availing itself of subsequent delinquencies as a defense to a. suit on the certificate; nor will it therefore be required to accept payment of such subsequent dlinqueneies under like conditions as. previous delinquencies1 were so irregularly received. A fortiori where when the previous delinquencies were received the insured was in good health and entitled to discharge his delinquencies and he reinstated, irregularities in the receipt of such delinquencies, will not affect the right of the association to decline to receive delinquent assessments after the insured is dead or while he is ■ dying; nor its right to defend on the ground that such delinquency terminated the rights of the beneficiaries under the certificate in accordance with the laws of the association.
    3. Payment of overdue assessments by a son of a delinquent member, after the death of. such member or while he is dying, will neither prevent the ipso facto suspension from membership of the delinquent member, or the certificate of insurance held by him from becoming null and void under the laws of the association so provided in such a case, where there are no incidents connected with his relations to the association that would fairly lead him -to. suppose that reinstatement would be granted if he should become sick while delinquent, or, that suspension and loss of benefits would not attach by reason thereof.
    4. Calls sent out by a beneficial association addressed to its local secretaries directing them to collect the assessments therein named, and to mail or deliver to eyery member of the local order a reminder to pay the assessment and dues on or before certain date, but without specially naming any member, is not a waiver by the association of its constitution and laws providing for the ipso facto suspension from membership of delinquent members. Such calls can only be construed as calls upon such delinquents as are still in 'good health and present themselves in person for reinstatement, or furnish the prescribed certificate of good health, as required by the laws of the association.
    5. A local secretary of a beneficial association is without authority, by extending the time of payment or accepting overdue assessments without the knowledge or assent of the association or its officers, to suspend a provision in the constitution and by-laws of the association to the effect that non-payment of assessments at the-time they become due shall ipso facto suspend the delinquent from membership, when such authority to agents is expressly denied by the laws of the association, and members of the association are exclusively presumed to have knowledge of such absence of' authority.
    Parker, J.; Hull, J., and Haynes, J., concur.
    This action was brought in the court below by Kate Pete,' the beneficiary under a certain certificate of insurance issued to her husband., Joseph Pete, by the Woodmen of the World,, on October 23, 1900, entitling her to recover $500 upon the death of her husband, if certain conditions upon which this certificate was issued were complied with. It appears that her husband came to his death upon February 6, 1903. She applied to the association for payment and it was refused. Thereupon she began her action.
   . The defense of the association was that the conditions of the certificate had not been complied with, in that Mr. Pete had failed to pay assessments which he was required to pay under the rules of the association and under his contract with the association; that he had failed to pay certain assessments which were overdue at the time of his death, so that under the terms of the contract the certificate had become null and void.

It was admitted upon the part of the plaintiff that Mr. Pete had failed to pay certain assessments at the time they fell due, and that certain assessments were overdue at the time of his death. But it was contended upon her behalf that the association had customarily so treated such delinquencies as that it had waived" the condition and was, therefore, estopped from asserting it and could not insist upon a forfeiture, but should be required to pay the amount promised.

On behalf of the association, it is admitted that when these assessments became overdue from time to time, so that under the laws of the order the member became suspended, he was reinstated by the action of a certain representative -of the association without being required to comply strictly with the rules of the association in that behalf; but they insist that in so far as the rules were deviated from and violated, this was done by such representative of the association in making the collections of the assessments and transmitting them, without knowledge upon the part of the association that he was thus deviating from the method that he should have pursued under the law; in other words, without knowledge of the fact that he was violating his instructions and his duties as an agent; and therefore the association insists that no claim of waiver can be predicated upon such action, and that no estoppel can arise out of it.

The case was tried by the court and jury and a verdict returned for the defendant under the instruction of the court, and judgment entered thereon, and it is to reverse that judgment that error is prosecuted in this court by the plaintiff in error, who was the plaintiff below.

In order that the controversy may be fully understood, it is necessary that certain provisions of the constitution and by-laws of the association shall be adverted to. This is what is known in general terms as a beneficial association. It is called The Woodmen of the World. It consists mainly of a sovereign camp, which is made up of subordinate camps or branches of the association. Section 2 of the constitution and by-laws of the sovereign camp of the Woodmen of the World provides, among other things, with respect to its powers that:

‘£ It shall have the power to enact laws for its own government, the government of its head camps, and camps, and for the con-, trol and management of the business of the order generally, • except in the Pacific and the Canadian jurisdictions, and to provide penalties for the violation thereof. It shall have power to prescribe the rights, privileges, duties and responsibilities of itself, its camps and the membership of the order, and to finally determine the same.”

Section 59 provides that:

£ £ The following conditions shall be made a part of every beneficiary certificate and shall be binding on both member and order.
“First. This certificate is issued in consideration of the- representations, warranties and agreements made by the person named herein in his application to become a member, and in consideration of the payment made when introduced in pre-. scribed form; also his agreements to pay all assessments and dues that may be levied during the time he shall remain a member of the order.
‘ ‘ Second. If the admission on fees, dues and beneficiary fund assessments levied against the person named in this certificate are not paid to the clerk of his camp, as required by the constitution and laws of the order, this certificate shall be null and void, and continue so until payment is made in accordance therewith.”

Section 68 provides that :

“No officer, employe or agent of the sovereign camp, or of any camp, has the power, right or authority to waive any of the conditions upon which the beneficiary certificates are issued, or to change, vary or waive any of the provisions of this constitution or these laws. Each and every beneficiary certificate is issued only upon conditions stated in, and subject to the constitution and laws.
“The constitution and laws of the sovereign camp of the Woodmen of the World now in force, or which may hereafter be enacted, by-laws of the camp now in force, or which may be hereafter enacted, the application and certificate shall constitute a part of the beneficiary contract between the order and the member.”

Section 81 provides that:

“Camps shall only have such powers as are given by the constitution and laws of the sovereign camp. They may adopt bylaws for their own government, not inconsistent with the constitution and laws of the sovereign camp, but such by-laws must be submitted to and approved by the sovereign commander before taking effect.”

Section 92 provides among other things that:

“The clerk of the camp shall not, by acts, representations, waivers, or by vote of his camp, have any power or authority not delegated to him or to the camp by the constitution and laws of the order to bind the sovereign camp or his camp.”

Among other provisions to be noted are the following:

“Section 107. On or about the twentieth day of each month the sovereign commander and chairman of the sovereign finance committee shall determine the number of assessments, if any, necessary to provide for the payment of death benefits, monuments and total disability claims, and shall so notify the sovereign clerk.
“Section 108. Every member of this order shall pay to the clerk of his camp, every month, one monthly payment of emergency fund dues and sovereign camp and camp dues; and unless otherwise notified by the clerk of his camp, in the manner herein provided, shall pay to said clerk every month one assessment in the beneficiary fund. He shall pay any additional assessments for beneficiary fund or special general fund dues which may have been ordered by the sovereign camp. If he fails to pay any of the above assessments or dues on or before the first day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void.”
“Section 115. Should a suspended member personally appear and apply for reinstatement within three months from the date of his suspension and pay all arrearages, if in good health and is not addicted tó the excessive use of intoxicants or narcotics, he shall be restored to membership and his beneficiary certificate again become valid as soon as said payment shall have been received and recorded by the clerk of his camp.
“If a delinquent member does not appear in person to pay his arrearages, he must send to the clerk a written statement on the official form furnished by the sovereign camp that he is in good health, and is not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement, and waiving all rights thereto if his said written statement shall be found to be untrue. No suspended member shall be reinstated until he has either appeared before the clerk in person, and paid his arrears and dues, or the clerk shall have actually received his written application for reinstatement, accompanied with all arrearages and dues. An attempted reinstatement shall not be operative or binding, unless the member be in fact in good health iat the time.
“If any of the representations or statements made by said applicant are untrue, then said payments shall hot cause his reinstatement nor operate as a waiver of the above conditions. ’ ’
“Section 118. No suspended member shall be reinstated, whose health is at the time impaired, or who has used intoxicants-to such an extent as to become frequently intoxicated, or who has become addicted to the use of opiates, cocaine, chloral, or other narcotic poison to such an extent as to- impair his health, or who has made false representations in his application to become a member, or been guilty of any of the offenses mentioned in these laws.
“Should any clerk knowingly violate this section, he shall, on proof thereof, be suspended from his office by the sovereign commander and expelled from the order by his camp.
“Section 119. A member suspended for non-payment of assessments or dues is not' entitled to any benefits of the order. He shall not be entitled to receive the pass words, nor to participate in any of the business or social proceedings of his camp. He m.ay be admitted at a meeting only to pay his arrearages and must retire if he fails to do so.”

Section 24, prescribing tbe duties of the sovereign officers, contains this provision:

“As soon as the required monthly report has been received from a camp, he (meaning the sovereign clerk) shall mail a notice to the last known address of every member reported suspended in said report informing him of the requirements of the laws of the order to become reinstated, but the failure to send such notice shall in no wise affect the legal suspension of said ¡member.”

It will be observed that under these rules the failure to pay the assessments when due results in the suspension of the member ipso facto, without notice, and that after suspension and until reinstatement, he is entitled to none of the benefits of the order.

Joseph Pete was a member of this order. He became a member upon his application, the original of which is introduced in evidence here. The application is made upon a regular form provided for that purpose by the association; and, among other provisions in the application is this:

“I hereby certify, agree and warrant that all statements, representations and answers in this application, consisting of two pages, as aforesaid, are full, complete and true, whether written by my own hand or not, and I agree that if I fail to comply with all the laws and rules of the order or association now-in force or hereafter adopted, my beneficiary certificate shall become void, and all rights of any person thereunder shall be forfeited. I further agree to pay all assessments and dues for which I may become liable as a member of the order, as required by its constitution, by-laws,” etc.

The beneficiary certificate issued to Joseph Pete contains this provision:

“This certificate is issued and accepted subject to all the conditions on the back hereof, and subject to all of the laws, rules and regulations of this fraternity now in force or that may hereafter be enacted, and shall be null 'and void if said sovereign does not comply with all of said conditions and with all of the laws, rules and regulations of the sovereign camp of the Woodmen of the World, that are now in force or which may hereafter be enacted, and with the by-laws of the camp of which he is a member. ’ ’

It will be observed that the member is called a sovereign. Upon the back of the certificate, among other conditions is this:

“If the admission fees, dues and beneficiary fund assessments levied against the person „named in this certificate are not paid to the clerk of his camp, as required by the constitution and laws of the order, this certificate shall be null and void, and continue so until payment is made in accordance therewith.”

These stipulations in the application and certificate, together with the provisions of the laws of the association quoted, constitute the essential terms of the contract between the insured and the association, necessary to be considered by us, and by which the beneficiary is bound. It is well settled by the authorities that all of these rules, these laws of the order, constitute a part of the contract, binding upon the insured. And it is well settled by the authorities that under circumstances like these shown in.the record here, the insured is conclusively presumed to have known what these laws were and what they required of him.

Notwithstanding this it appears that on various occasions (some five or six occasions during the year 1902) he failed to 'pay his assessments when they fell due, or within one month thereafter, as is required by the laws of the order; that in pursuance of his duties, the secretary of the local camp from time to time reported his delinquencies; that before the expiration of the three months limit upon the right to reinstatement, the ■ delinquencies were paid, after which the local secretary, in ascordance with the laws of the order, would report to the sovereign camp reinstatement of the member. But, as I have read, the laws require that the delinquent should appear in person to pay his arrearages, or must send to the clerk -his written statement on the official form furnished by the sovereign camp that ,he is in good health, as a condition precedent to reinstatement, and waiving all rights thereto if said written statement shall be found to be untrue.

It appears that the secretary of the local camp did not require this of Mr. Pete, but permitted him and his wife and son, from time to time to pay up his arrearages, without requiring the personal appearance of Mr. Pete or the furnishing of a written statement that he was at the time in good health, and, upon the arrearages being paid up, he reported the member to the sovereign camp as being reinstated and in good standing in the association.

Now there is no evidence in the record that the officers of the sovereign camp ever had any notice or were informed in any way of the irregularities or breach of duty upon the part of the secretary of the local camp in thus proceeding to reinstate this member.

As I have said, Mr. Pete died upon February 6, 1903; he died very suddenly; he was at work upon the streets here in the city of Toledo for the Electric Light and Traction Company, at work at the tracks, when he fell upon the street. There seems to be some doubt whether his death resulted from some heart trouble or from an accident. However that may be, he died suddenly. His son, who was present at the time, when it became apparent that he was dead or in a dying condition, seems to have hurried home to their residence not far away, and there procured the book upon which entries were made of the payment of assessments, and with it hurried to the post-office in this city, where the secretary of the local camp was employed, and where he received payments, and there without notifying the secretary of his father’s condition, tendered to him the assessments which had fallen due upon the first of December, 1902, the first of January, 1903, and the first of February, 1903.

It appears that the secretary of the local camp, as a matter of accommodation, had advanced for Mr. Pete the assessment that fell due December 1, 1902, without any request on his behalf, but assuming that he would desire it, and that it would be a favor to him to have it advanced, so that he had not been reported to the sovereign camp as delinquent on account of that assessment, though Mr. Pete had not paid it and was really owing it to the secretary of the local camp. The assessment falling due upon the first day of February need not have been paid until the last day of that month, as the member had one month within which to pay.

In pursuance of what the laws required of him, the clerk had made his report to the sovereign camp on the sixth day of February of the payments received on account of-the assessments due during the month of January — the assessments for that month. This report should have been sent upon the fifth, but it appears to have been delayed until the sixth. It had been made out, however, and mailed before the son of the insured appeared at the office to pay these delinquencies; and in this report Joseph Pete is reported as one of the- delinquents.

Now when the young man appeared there to pay the assesment on February sixth, he did not make known to the secretary the condition of his father, and the secretary., assuming and supposing, as appears, that his father was in condition to be reinstated, received the money tendered and receipted for it. Immediately upon receiving the receipts, the young man said to him that he had some bad news to tell him, and upon the secretary inquiring what it was, young Pete said to him that his father, Joseph Pete, was dead or dying; that if he was not dead he supposed he would be by the time he, the son, should arrive home, or in substance that. Thereupon the secretary said to him he was very sorry to say that the payment came too late, that it would not do any good, and he then, or in the evening of that day, tendered the money back to the young man, who refused to receive it. It is insisted that this action, the paying of these assessments under these circumstances, served to reinstate Joseph Pete to full membership, and to restore to him all he may have lost by suspension.

We are of the opinion that the court of common pleas took the proper and correct view of the law of this case when it held that the member could not be reinstated in this way; that there was no estoppel and no waiver arising out of delinquency of the secretary of the local camp in receiving payments as he had received them from time to time on previous occasions, it not appearing that the sovereign camp was advised of his action in the premises.

There is a great deal of law bearing upon this question, in the form of precedent cases similar to this, and in the text books, and it is presented in the briefs of counsel and has been reviewed upon the argument, very fully and very ably. But our time will not permit of a review of all decisions. We content ourselves with simply, announcing the conclusions we have arrived at. We remark, however, that the authorities upon which we rely chiefly and those which seem to us to be most direct in point, and to clearly sustain our conclusions are the cases:

' Northern Assr. Co. v. Building Assn., 183 U. S., 308; Royal Arcanum v. Taylor, 121 Fed Rep., 66; Modern Woodmen, of A. v. Tevis, 117 Fed. Rep., 369; Union Cent. L. Ins. Co. v. Buxer, 62 Ohio St., 385; Union Cent. L. Ins. Co. v. Hook, 62 Ohio St., 256; Travelers Ins. Co. v. Myers, 62 Ohio St., 529, 541; Gaff v. Insurance Co., 18 Bull., 310; affirmed by Supreme Court, no report, Gaff v. Insurance Co., 15 Bull., 373.

Though the laws respecting reinstatement were not strictly -enforced by the secretary of the local camp, nor complied with by the assured, it does not appear that the assured was ever in bad health, or otherwise disqualified from becoming reinstated as a member at any of the times when his overdue assessments were accepted and receipted for by such secretary; so that, at most, the waiver could not be said to have gone beyond the formalities prescribed for reinstatement. There was nothing in the incidents that could fairly lead the insured to suppose that if he became sick while delinquent, the reinstatement would be granted; or that if he should die before reinstated the plainly prescribed result of suspension would not attach, but the certificate would be honored just the same as if he had been in good standing at the time of death; and there was nothing in the evidence tending to show that he so thought. The conduct of the son, evidently with the concurrence of the wife, in proceeding with such dispatch to try to discharge the delinquencies while the father and husband was lying dead or dying upon the street indicates that they, at least, had not been mislead, but keenly appreciated the critical situation and the necessity of doing everything possible to avert the apprehended consequences.

But we may lay aside all consideration of possible erroneous impressions that may have been made upon the minds of the insured and his family, for the contract was perfectly plain and explicit, and the sovereign camp does not appear to have been in any way responsible for any notions they may have had that the order would not insist upon substantial compliance with the conditions thereof. The assured having expressly agreed to be bound by the laws which became a part of the contract between him and the company, and having had full opportunity to acquaint himself with such laws (especially the essential parts pertaining to suspension and the results thereof incorporated into his beneficiary certificate which had been in his possession ever after its issue), we hold that he is conclusively presumed to have had knowledge of all the provisions of such certificate and laws affecting his rights and interests, and that he was bound thereby.

We also hold that under the laws of the order the secretary of the local camp was not authorized to extend the time of payment of assessments or accept overdue assessments, except in the manner and under the circumstances prescribed in Section 115 of the laws of the order, i. e., either upon the insured appearing personally before such secretary, so that he may see the insured is alive and well, or upon being furnished with the prescribed Written statement to that effect.

The unauthorized acts of the secretary of the local camp in irregularly accepting overdue asessments and thereupon reporting to the sovereign camp that the member was reinstated, so long as such irregularities were known to the sovereign camp or its officers, did not have the effect of a waiver by the latter of any of the conditions of the contract; nor did such acts estop the sovereign camp from insisting upon suspension and forfeiture because of the non-payment of assessments before they became overdue. Having failed to pay the assessments for January, 1903, before the expiration of that month, the insured was ipso facto suspended and his reinstatement did not result from, nor were the consequences of loss of benefits to the beneficiary obviated by the payment made by the son to the secretary of the local camp on February 6, 1903, while the father was dying or after he was dead.

We do not find in the record a scintilla of evidence tending to show that the unauthorized and irregular practice of the secretary of the local camp in accepting overdue assessments and-reporting the reinstatement of the delinquent member was know to the sovereign camp or the officers thereof. Therefore, we hold that the trial court was right in directing a verdict for the defendant.

There is another matter upon which I should make a further remark. It appears that official calls for assessments were sent forward from time to time by the sovereign camp of the Woodmen of the World to the subordinate camps. The laws, however, provide that there shall be one assessment due from each member upon the first day of the month, which he shall be required to pay unless excused and notified; that he may be required to pay in one month more than one assessment and in such case he is to be apprised of the fact that he is called upon to pay the additional assessment; but the one assessment per month becomes due and payable regularly and the obligation rests upon him to go to the secretary of the camp and present himself there and make the payments without any notification from anybody, unless he is expressly excused from so doing.

It is contended by counsel on behalf of the plaintiff in error that there is something in the notification or calls sent out from time to time by the sovereign clerk which amounts to a recognition of the fact that those who are delinquent on account of non-payment of assessments are still in such standing in the order as that they may be properly called upon to pay assessments; and that under certain circumstances where an association thus recognizes the standing of a delinquent by calling upon him to pay assessments subsequent to those with respect to which he is delinquent, such recognition amounts to a waiver of the forfeiture arising out of the delinquency.

This call is directed to the clerk of every camp, and it calls upon him to collect the assessment mentioned in the call, and it says that he is requested to mail to the last known post-office address or deliver to every member of his camp on or before a date stated, a reminder to pay said assessment and dues. It does not name the persons who are called upon to pay, bnt it says he is to call upon every member, and it is urged that since Mr. Pete was, notwithstanding his delinquency, for certain purposes, and in certain respects, a member, it amounts to a call upon Mr. Pete to pay, and a waiver of his delinquency.

Harvey Scribner and A. H. Coldham, for plaintiff.

C. W. Neilson and L. T. Williams, for defendants.'

We can not regard the call as having the effect. .We do not think it was so intended; it can not fairly be so understood. We think it does not amount to a waiver or 'abrogation of the law with respect to delinquencies, but it is simply a call upon the clerk to collect from those who are entitled to pay, including delinquents who may be still in good health and present themselves in good health or furnish the prescribed certificate.

I should also mention' that counsel for plaintiff in error rely upon a case decided by this court, Swander v. Insurance Co., 1 C. C. — N. S., 233. We do not see that anything said or decided there has any legitimate influence here. The eases are very different, entirely different. That was an action against an old line company, and in that policy there was no condition of forfeiture whatever, and in that respect the case is radically different from this.

Finding no error in the proceedings or judgment of the court •of common pleas, it is affirmed.


author: Swing, J.

text:
    DAMAGES FOR PROPERTY TAKEN FOR STREET PURPOSES.
    [Circuit Court of Hamilton County.]
    Ella R. Tenney et al v. Cincinnati.
    Decided, January Term, 1900.

      Appropriation — For Street Purposes — Damages for, Should he Recovered, When — Established Grade.

    1. Recovery should be had in the original condemnation suit of all damages resulting from the construction of a street at a reasonable grade on the property taken.

      2. Error on the part of the trial judge in refusing to admit evidence in the condemnation suit as to resulting damages does not authorize a subsequent action for the recovery of such damages, notwithstanding a serious wrong may thereby result to abutting owners.
    Heard on error.

      Coppock (& Hertenstein, Theodore Horsiman,- Julius G. Penn and Bichará E. Werner, for the property owners.
   Swing, J.

We are of the opinion that the judgment of the court of common pleas should be affirmed in this case.

The parties should have recovered in the original' condemnation proceedings all damages for property taken for street purposes which would be caused by the construction on the property taken of a street to a reasonable grade, in the absence of any declaration by the city as to what the grade should be. And in the present case the property having been condemned for the purpose of widening a street with a well established grade, the damage for the construction of the improvement would, in the absence of a showing to the contrary, be that which would be caused by the construction of a grade corresponding to the grade of the street as established.

In this case the improvement is to be made in accordance with the grade of the street as established for more than fifty years and it is a reasonable grade; and the damage, if any, which results to the property owner should have been recovered in the action to condemn for street purposes. That the court in that action erred in not allowing it does not authorize us in this action to right what is undoubtedly quite a serious wrong to these parties. Error should have been prosecuted in that proceeding and not in this.

       Affirmed by the Supreme Court, without report — 67 Ohio State, 518.


text:
    EXTENSIONS OF STREET RAILWAYS.
    [Circuit Court of Cuyahoga County.]
    John F. Belle v. The City of Glenville and The Cleveland Electric Railway Company.
    Decided, November 28, 1904.

      Street Railways — Validity of Grant by County Commissioners — Not Affected by Annexation to City — Extension may be at Right Angles to Original Route — Motive Power Specified in Original Grant and Grant for Extension — Subject of Ordinance as Expressed in Title — Period Covered by Extended Grant — Extension of Route, and Extension of Track of Road Already Laid, Distinguished.

    1. The validity of a grant for a street railway route made by county commissioners through unincorporated territory is not affected by the subsequent annexation of such territory to a municipality.
    2. A grant may be made for an extension of a street railway route, where the extension is to be built at right angles to the original route and form a cross-town line.
    3. Where the original grant provided that the motive power should be horses or mules, but the line has been operated for many years by electricity, the grant for the extension is not rendered invalid by reason of the fact that electricity is specified as the motive power.
    4. Where the subject-matter of an ordinance, as expressed in the title, is the extension of a certain street railway, there is no violation of Section 1694 by reason of the fact that provision is made for the construction of a street railway, the repeal of portions of certain ordinances, the revival or reaffirmance of a portion of another ordinance, and an amendment of still another ordinance.
    5. A grant for an extension of a street railway' route for a period of less than twenty-five years is not obnoxious to Section 1536-185, by reason of the fact that the period named in the original grant will expire long before that named in the grant for the extension.
    6. The provision in Section 1536-189, providing for public notice in one or more daily newspapers of the pendency of a resolution or ordinance relating to changes in a street railroad route or a revision of the system of transfers, has reference to the extension of the track of a road already laid, and is- not applicable to the extension of a street railway route.

      Marvin, J. ■ Hade, J., and Winch, J., concur.
    Appeal by plaintiff.
   Suit is brought by the plaintiff to enjoin the City of Glen-ville and its officers and the Cleveland Electric Railway Company, which is a street railroad corporation, from taking any steys toward the construction or operation of a street railroad in Doan street in said city. Plaintiff is a taxpayer of said city and owns real estate therein, having a frontage on that part of said Doan street along which he alleges said railroad company is about to construct and operate a street railroad, and which it will construct and operate unless enjoined by the court. Plaintiff, before bringing this suit, requested the solicitor of said city to bring the same, which he refused to do.

The railroad company claim the right to construct and operate such railroad as an extension of its St. Clair street railroad line, so-called, now operated by it in said city, by virtue of an ordinance passed by the council of said city on the 29th day of June, 1903. Said ordinance provides, among other things, as follows:

“An ordinance authorizing the Cleveland City Railway Company to extend the present system of double-track street electric railway now in operation upon St. Clair street, in the city of Glenville, from St. Clair street, southerly, to the southerly limits of the city of Glenville, and from St. Clair street, northerly, to the right of way of the Labe Shore & Michigan Southern Railway Company.
“Whereas, heretofore, on the 15th day of June, 1902, the council of the village of Glenville passed an ordinance, entitled ‘ An ordinance authorizing the Cleveland City Railway Company to extend its present system of double track electric street railway on St. Clair street, from the present terminus of its tracks to the easterly limits of the village of Glenville, and on Doan street from its' tracks on St. Clair street south to the southerly limits of the village of Glenville, and to extend the present franchise of said company;’ and
“Whereas, said ordinance was duly accepted by the Cleveland City Railway Company, and it has begun the construction of its tracks and their appliances in pursuance of the terms of' said ordinance; and,
“Whereas, litigation has been instituted by one of the property owners upon Doan street, attacking the validity of said ordinance, so far as it grants the right to an extehtion to said railway company on Doan streét, which litigation is still pending, and by reason of which the construction of the line upon Doan street is being delayed; and,
“Whereas, The Cleveland City Railway Company has filed with the clerk of the city the written consents of more than cne-half of the property owners upon that portion of Doan street, between the southerly line of the Lake Shore & Michigan Southern Railway Company’s right of way and the southerly limits of the city of Glenville, to the construction and operation of such street railroad, thereon; and,
“Whereas, the city council of the city of Glenville hereby finds and determines that more than one-half of the property owners upon that portion of Doan street upon which an extension is authorized by this ordinance, having given their written consent to the construction and operation of a street railroad thereon; now, therefore,
“Be it Ordained by the council of the city of Glenville, three-fourths of all members of said council concuring:
“Section 1. That the Cleveland City Railway Company, upon the terms, conditions and agreements hereinafter contained and not otherwise, be, and the same is, authorized to extend, construct, maintain, and operate by electricity, its line of double track street railway in the city of Glenville, with the necessary poles, wires, switches and appurtenances, upon Doan street, from St. Clair street southerly to the southerly limits of the city of Glenville, and from St. Clair street northerly to the right of way of the Lake Shore & Michigan Southern Railway Company; said extension in Doan street to be constructed and operated as one entire extension of the present line of said company in said city, and as a cross-town line.
“Sec. 13. The right herein granted shall be and remain in force until June 18, 1927.”

The Cleveland- Electric Railway Company is the successor of the Cleveland City Railway Company, named in said ordinance, and is entitled to whatever right under said1 ordinance said Cleveland City Railway Company would have been entitled to but for the assignment of its rights to said Cleveland Electric Railway Company.

It is urged, however, by the plaintiff that no rights were acquired by any party to construct and operate such railroad under said ordinance.

The grounds upon which this cláim is based are that the line of railroad operated on St. Clair street at and prior to the time of the passage of said ordinance was being so operated without any lawful authority, because the same was constructed as an extension into the city, then village of Glenville, of a line of railroad then owned and operated by a predecessor of the Cleveland City Railway Company.

The village of Glenville immediately adjoins the city of Cleveland on the east. The first line of road constructed as a part of the St. Clair street line was so done by authority of an ordinance passed by the city of Cleveland many years ago, and the line so built extended easterly along said street to Willson avenue, which was then the east line of the city of Cleveland.

Under a franchise granted by the commissioners of Cuyahoga county a line of road was built by the company owning the St. Clair street line, which was a continuation of said original St. Cl'air street road, from said east line of the city to a point which is now within the city of Glenville, and was thereafter known as a part of said line.

When this line east of Willson avenue was built, the road over which the line ran was outside of any municipal corporation. Later, a part of the territory, including this part of said road, was annexed to and became a part of the city of Cleveland and the road was thereafter a part of the St. Clair street line in said last named city. The claim is made on the part of the plaintiff that such annexation had the affect to deprive the company of the right to operate said line between Willson avenue and the west line of the then village of Glenville.

This contention is not sound. If the law is as claimed, every time the territorial limits of a municipality are extended so as to take in unincorporated territory, every street railroad operating under authority of .the municipality to the extent that its lines are within the municipality, and under authority of the county commissioners, so far as its lines are without the municipality, would have its property rights taken away by simply an annexation of such unincorporated territory to the municipality. This is against reason, and would perpetrate such a wrong upon street railroad companies as can not be tolerated by the law.

It has already been said that Glenville immediately adjoins the city of Cleveland on the east. This, of course, was not true at the time the line was built over the unincorporated territory-east from Willson avenue. So that we hold that after the annexation of the unincorporated territory already mentioned, the railroad company lawfully owned and operated the St. Clair street line easterly from Willson avenue.

On the 20th of March, 1890, the council of Glenville passed an ordinance in terms authorizing the street railroad company to extend its line from its then eastern terminus easterly along St. Clair street in Glenville to the Coit or Eddy road, a long way east of Doan street, and shortly thereafter the road was so extended and has ever since been operated as a part of the St. Clair street line of said railroad company throughout its entire length.

The railroad company claim the right to make the extension now sought to be made by virtue of old Section 2505, now Section 1536-188, Revised Statutes, which reads:

‘ ‘ The council of any city or village may grant permission, by ordinance, to any corporation * * * owning or having the right to construct any street railroad to extend their track, subject to the provisions of Section 3437, 3438, 3439, 3440, 3441, 3442 and 3443 on any street or streets where council may deem such extension beneficial to the public,” etc.

Old Section 3438, now Section 1536-183, Revised Statutes, provides that:

“No extension of any street railroad located wholly without any such city, or of any street railroad wherever located, which has been or shall be built in pursuance of a right obtained from any source or authority other than a municipal corporation, shall be made within the limits of such city, except as a new route and subject to the provision of Section 2501 of the Revised Statutes of Ohio and Section 30 of this act.”

As has already been said, a part of the present St. Clair street line was built under authority granted by the county commissioners. It is urged, that, this being true, any extension of such line must be made under the provisions of the law regulating the construction of new line of road because it is said there is a part here of the iine sought to be extended, the authority to construct which was obtained from another source than a municipal corporation. As has already been said, this line on St. Clair street throughout its entire extent has been owned and operated by the predecessors of the Cleveland Electric Railway Company for more than twelve years, and its last extension was granted by ordinance of the council of Glenville in 1890. That extension is the one which was made over a line, part of which was built under authority other than that of a municipal corporation, but for the whole time since 1890 this extended line has been operated without interference on the part of the plaintiff or the village of Glenville.

The authority provided in Section 1536-188, Revised Statutes, is to any corporation or individual “owning or having the right to construct any street railroad.’’ We think the street railroad company here comes within the terms of this statute and that the city of Glenville can not now be heard to complain that the extension made in 1890 was invalid for the reason suggested; and if the city of Glenville can not be heard, then this plaintiff can not be heard to make such complaint.

Doan street runs north and south and crosses St. Clair street nearly at right angles at a point east of the west line of Glen-ville, about one-third of the distance between the east and west lines thereof and south of the Lake Shore & Michigan Southern track, about one-third of the distance to the south line of Glen-ville.

It is not claimed on the part of the railway company that it pursued the statutory method necessary to construct and operate an original street railroad, but only that it did those things necessary for the extension of the tracks of an already existing road.

. It is said, however, that the construction of a road across and at right angles with an already existing road can not in any proper sense be called an extension of the track of the original road, and it is said that this is emphasized by the language of the ordinance providing that “said extension in Doan street to be constructed and operated as one entire extension of the present line of said company in said city- and as a cross-town line.”

We do not understand that the language of the ordinance as to a cross-town line in any manner affects the question of whether the Doan street track can be considered as an extension of the St. Clair street track. To extend the track of a street railroad is not necessarily to continue such track in the same general direction as the original track. It' would seem as though there could be no doubt that if there was a point somewhere to the north of St. Clair street which it was important to the railroad company and to the public should be reached by the tracks of such road, the laying of track connections with the St. Clair street track to such point would properly be an extension of the track already laid; and perhaps, if the point to be reached had been so far east from Doan street as that the new track being connected with the St. Clair street track at Doan street would diverge at a very slight angle from the line of St. Clair street going east, it would be admitted that this might 'properly be called an extension of the St. Clair street track, and surely ■ the degree of the angle made in passing from the St. Clair street track onto the track laid as an extension can in no wise affect the question of whether such new track is an extension of the old. If this is true as to the north side of St. Clair street, it must be equally true as to the south side of St. Clair street, and a line of track running either northerly or southerly from the St. Clair street track might with propriety be designated as an extension of the St. Clair street track. If this be so, then a track running either way from St. Clair street along Doan street might be made as an extension of the St .Clair street track, and surely one extension having been made could be no bar to the making of the extension in the other direction, and it would be absurd to say that you might accomplish what was in terms authorized by this ordinance by making two extensions when it could not be done by making all as one extension. This is so held in the case of Louisa E. Aydelott v. City of Cincinnati, 8 C. C., 486, the fourth clause of the syllabus reading:

“The fact that at a certain point a street railroad route forks and becomes two diverging branches does not destroy the unity of the route and make it two diverse and different routes. ’ ’

In the case of The City of Cincinnati v. Cincinnati Street Ry. Co., 31 Bull., 308, the Superior Court of Cincinnati held:

“To constitute a valid extension within the meaning of the street railway regulation of this state, it is not necessary that the extension should begin at one of the termini, or run in the general direction of the original route.”

See also South Boston R. R. v. Middlesex R. R. Co., 121 Mass., 485.

We hold, therefore, that the proposed line of track along Doan street is properly an extension of the St. Clair street track.

It is urged, however, that the company’s rights to operate on St. Clair street, if it had any, was to operate as an extension of a line, the motive power of the cars of which should be horses or mules, and that, therefore, no extension of the track could be authorized with electricity as a motive power. The answer to this is that at the time application was made for this extension the railroad company owned and were operating a road along St. Clair street with electricity as a motive power, and that for more than ten years before the filing of the application for this extension the cars had been operated over this line with something other than horses and mules as the motive power.

It is urged further on the part of the plaintiff that the ordinance of June 29, 1903, is in violation of Section 1694 of the Revised Statutes, which provides:

“No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title, and no by-law or ordinance, or section thereof, shall be revived or amended, unless the new by-law or ordinance contain .the entire by-law or ordinance, or section revived or amended; and the by-law or ordinance, section or sections shall be repealed,” etc.

First, it is said that the ordinance legislates as to several subjects, to-wit, the construction of a railway, the repeal of portions of certain other ordinances, the revival or reaffirmance of portions of another ordinance, and the amendment of another ordinance.

We understand the entire subject-matter of the ordinance under consideration was the construction and operation of an extension of the track of the St. Clair street railroad line along Doan street, and that the other matters spoken of are simply incidents of that one subject-matter. This subject-matter is clearly expressed in the title of the ordinance, and therefore this position of the plaintiff: is untenable. So far as the ordinance undertakes to repeal any prior ordinance, it is found in Section 10, which reads:

“Section 10. Said railway company, by accepting the terms of this ordinance, shall be deemed to have waived all right to construct said Doan street line under the franchise granted and undertaken to be granted by the ordinance passed by the council of the village of Glenville, June 18th, 1902; and so much of said ordinance as is in conflict with the provisions of this ordinance, or relates in any manner to the granting of such right on Doan street is hereby repealed; in all other respects said ordinance is approved and confirmed.”

All that is done is in the language. ordinarily used in legislative enactments by the General Assembly, and we think no mandatory provision of the section referred to is violated by the language repealing a previous ordinance.

As to the language which it is said is obnoxious to the statute because it re-enacts some part of a former ordinance, it is enough.to say that the language used, viz.,“In all other respects said ordinance is approved and confirmed” added nothing to such former ordinance and was not a re-enactment thereof, but was simply surplusage, as such parts of the former ordinance as were not repealed would, without this language, have remained in force.

Objection is further made to the ordinance under consideration, that it extends the franchise upon St. Clair street. The franchise which the railroad company held on St. Clair street would have expired but for this extension.

The ordinance under consideration, as will be seen by Section 13 already quoted, grants the rights provided for in the ordinance to remain in force until the 18th of June, 1927. We do not understand that this would at all render the ordinance invalid.

Section 1536-185, Revised Statutes, provides:

“That no grant nor renewal for any grant for the construction or operation of any street railroad, shall be valid for a greater period than twenty-five years from the date of such grant or renewal.”

And as this simply provides that this extension may continue for a period of less than twenty-five years from the date of the ordinance, we think no just criticism can be made upon it in that regard.

This court, in the case of State, ex rel Hadden, v. East Cleveland Ry. Co., 6 C. C., 318, held that:

“Whenever in the opinion of the city council the public welfare would be promoted thereby, it may, by agreement with a street railway company, terminate a grant previous to its expiration and renew the franchise for any period not in excess of the limitation fixed by statute.”

Section 1536-184, Revised Statutes, provides for the renewal of grants already made, the language being “The council may renew any such grant at its expiration, upon such conditions as may be conducive to the public interest.”

If this last mentioned section applies at all to the matter under consideration, we do not suppose that it was intended by the Legislature that the date of the grant of every renewal must be at the exact day on which the original term expired. This would be impracticable, as is shown by Judge Upson in his opinion in the case already cited from the 6th C. C. Report.

It is further urged that the provisions of Section 1536-189 were not complied with in making this extension. Special attention is called to this language of the section:

“Provided, further, that no resolution or ordinance, providing for such extension or change of route or routes, or changes or revision of systems or transfers, shall be passed until public notice of the pendency of such resolution or ordinance shall have been given in one or more of the daily newspapers,” etc.

No claim is made on the part of the railway company that this was complied with, for the reason, as it 'is urged, that it has no application to the extension of the track of an existing line of road such as is provided for in Section 1536-188. An examination of those two sections (1536-188 and 1536-189) makes it plain that the subject-matter of each is different from the subject-matter of the other, and therefore the provisions as to the extension of routes are not applicable to the extension of the track of a road already laid.

Arnold Green, for plaintiff.

O. M. White, 0. A. Neff, Squire, Sanders & Dempsey, for defendants.

Other objections were made on the hearing to the proceedings of the council and the railway company, but an examination of the whole case leads us to the conclusion that the petition of the plaintiff should be dismissed, and it is so- ordered.


author: Per Curiam.

text:
    FRATERNAL ORDERS AND THE ROYAL ARCANUM.
    [Circuit Court of Hamilton County.]
    Mary C. Gilligan v. Supreme Council of Royal Arcanum.
    Decided, January Term, 1904.

      Trial — Motions by Both Parties to Direct Verdict — Fraternal Orders — ■ Royal Arcanum — Exempt from Insurance Laws of the State— Medical Attendance — Section 3631-11.
    1. Where both parties to a suit move the court for arrest of the cause from the jury and a directed verdict, and the party whose motion is overruled merely excepts thereto, the case is brought within the rule that the verdict should not be set aside unless clearly against the weight of the evidence.

      2. The Supreme Council of the Royal Arcanum is a fraternal order within the meaning and provisions of Section 3631-11, Revised Statutes, exempting such associations from the insurance laws of the state.
    5. Attendance upon a patient at the office of the physician is sufficient to constitute medical attendance.
    Gippen, 'J.; Jelke, 'J., aud Swing, QT., concur.
   Per Curiam.

Plaintiff in error complains that certain issues should have been submitted to tbe jury.

The bill of exceptions shows the following:

“And thereupon counsel for defendant moved the court to •arrest this cause from the jury and to direct the jury to return a verdict in favor of the defendant; and counsel for plaintiff -also moved the court to arrest the cause from the jury and to direct the jury to return a verdict for the plaintiff for the full Amount named in the petition. After argument by counsel upon both sides, the court granted the motion of the defendant and overruled the motion of the plaintiff; to which the plaintiff, by her counsel, then and there excepted.”

Howard Douglass and George W. Harding, for plaintiff in error.

Cobb, Howard & Bailey and Bobert C. Pugh, for defendant in error.

This brings this ease clearly within the rule laid down in Bank v. Hayes & Sons, 64 O. S., 100

“Where, at the conclusion of the evidence in a case, each party requests the court to instruct the jury to render a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence.”

We abide by our holding of March 14, 1902—

“We are of opinion that the Supreme Council of the Royal Arcanum is a fraternal order within the definition and provisions of Revised Statutes, 3631-11 (see Certificate of Incorporation, page 116 of Exhibit ‘A,’ Chapter II, pages 1 and 2 same). This being so, we find that part of Revised Statutes 3631-11 provides as follows: ‘Such associations shall be governed by this act, and shall be exempt from the insurance laws of this state.’ Hence Revised Statutes 3621-22-23-24 and 25 would not apply to a certificate of membership in this order.”

Also see Williams v. Donough, 65 O. S., 502; Ben Legion v. McGinnis, 59 O. S., 531; Grand Lodge v. Bunkers, 23 C. C., 487; Association v. Martin, 183 Ind., 376.

; We follow the case of Cushman, Adm’r, v. U. S. Life Insurance Company, 70 N. Y. (Appeals), 72:

“To constitute a medical attendance it is not necessary that a physician should attend a patient at his home; attendance at the office of the physician is sufficient.”

The testimony of Dr. Hoppe was properly admitted under the policy. Foley v. Royal Arcanum, 151 N. Y., 196.

Judgment affirméd.


text:
    JURISDICTION OF THE COURTS CAN NOT BE TAKEN AWAY BY CONTRACT.
    [Circuit Court of Cuyahoga County.]
    The City of Cleveland v. C. N. Griffin et al.
    Decided, November 7, 1904.

      Contracts — Provision naming a Final Arbiter Void — Where a Construction of the Contract is in Issue — Jurisdiction of the Courts— “Ends” of an Arch Over a Driveway.

    1. The provision in a contract that the parties thereto shall be bound by the final estimate of the engineer, does not in Ohio deprive a court of justice of jurisdiction in a suit involving the proper construction of the contract, or the correctness of the engineer’s estimate thereunder.
    2. In a contract for the construction of an arch over a driveway, the • word “ends” will be construed to mean the faces of the arch as seen by one approaching along the driveway from either direction, or that part of the arch ocn either side of the driveway which comes nearest to the ground, as the evidence tends to show which was the meaning the parties had in mind when the contract was drawn, and the prices provided for therein for the work may properly be considered in determining in which sense the word was used in the contract.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Error to the court of common pleas.
   The plaintiff in error was the defendant below. The defendants in error were plaintiffs below. The terms plaintiff and defendant as used in this opinion refer to the parties as they stood in the original ease.

The plaintiffs are parties doing business under the firm name of Griffin, Norton & Co.

The defendant is a municipal corporation organized under the laws of Ohio.

On the 12th day of July, 1899, the plaintiff, C. N. Griffin, and the defendant, the latter acting by and through its proper officers and proceeding in all respects according to law for that purpose, entered into a contract in writing, under which the said Griffin was to construct a masonary arch at Edgewater Park in said city. By the terms of said contract the said Griffin was to do all the work and furnish all the machinery, tools and materials, and do everything requisite to the complete construction of said arch, in the manner and under the conditions specified in the contract and in accordance with plans and directions made and to be made from time to time by the defendant, and ' the said Griffin was to receive therefor, from the defendant different prices for the different parts of the work, such various prices being specified in the contract.

Among the prices so specified are the following:

“3. For all stone masonry in the work, except' the arch masonry, including the furnishing of all materials, tools and labor, the sum of seven dollars and fifty cents ($7.50) per cubic yard.
“4. For all arch masonry in the work, including the furnishing of all materials, tools and labor, forms and centers, the sum of eleven dollars and fifty cents ($11.50) per cubic yard.”

The said Griffin assigned to the plaintiffs all his rights under this contract.

The work was fully completed. Payments were made by the defendant from time to time, upon estimates furnished by the _ engineer acting for the city.

On the 26th day of October, 1901, the proper engineer furnished a final estimate for the work done and materials furnished in the construction of said arch. Said estimate fixed the amount of stone masonry in said arch at 3,774.46 cubic yards, and the' amount of arch masonry at 644.46 yards. As to these estimates the plaintiffs complain that, though the aggregate amount of masonry is properly given, the division between the two classes is wrong.

Other items in this final estimate were complained of by the plaintiffs, but no claim is here made that the judgment of the court below as to such items was erroneous. The petition prayed for a correction of the so-called final estimate of the engineer, that an accounting might be had upon such corrected estimate, and that plaintiffs have judgment for the amounf found due them upon such accounting.

The result in the court of common pleas was a finding that 939 yards classified in the estimate as stone masonry should have been classified as arch masonry, thus increasing the amount of arch masonry to 1,583.46 cubic yards and reducing the amount of stone masonry to 2,795.70 cubic yards, an accounting then being taken and fixing the amount due plaintiffs upon such amended estimate.

As the price of arch masonry was fixed in the contract at $11.50 per cubic yard while stone masonry was fixed at $7.50, the court added to the engineer’s estimate on this item $4 per yard on 939 yards, and the only question before this court is whether the court erred in making this addition.

One of the items in the contract hereinbefore mentioned reads:

“8. To prevent all disputes and litigation, it is further !\ agreed by and between the parties to this contract that the engineer shall be referee, in all cases, to decide upon the amount, quality, acceptableness and fitness of the several kinds of work and materials which are to be paid for under this contract, and upon all questions which may arise, relative to the fulfillment of the contract on the part of the contractor, and his estimates shall be final and conclusive, and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of said contractor to receive any money under this agreement.”

A further provision of the contract, under the heading “General Requirements,” is as follows:

“It is further mutually agreed that whenever, in the opinion of the engineer, the said contractor shall have completely performed this contract, the said engineer shall proceed with all reasonable diligence to measure up the work, and shall make out the final estimate for the same,” etc.

It was in pursuance of this clause of the agreement that the estimate herein first mentioned was made out.

On the part of the defendant, it is urged that under this contract plaintiffs were absolutely bound by the final estimate of the engineer, no claim being made that there was any purpose or' intention on his part to defraud the plaintiffs, or that he acted in bad faith in making his estimates. Authorities are cited in support of this contention. Among them is the case of The Martinsburgh & Potomac R. R. Co. v. March, 114 U. S., 549. The provisions of the contract in that case are substantially as in the one under consideration here. In that case there was no allegation in the bill that the engineer had made the final estimate provided for, but the court say, on page 553:

“Upon the supposition that the engineer made such a certificate as that provided by the contract, there is no allegation that entitled the plaintiff to go behind it; for there is no averment that the engineer had been guilty of fraud, or had made such gross mistakes in his estimates as necessarily implied bad faith, or had failed to exercise an honest judgment in discharging the duty imposed upon him. The first count of the declaration was, therefore, defective for the want of proper averments showing plaintiff’s right to sue on the contract, and the demurrer to that count should have been sustained.”

, From this case and the cases cited in its support, it seems clear that if the rule there laid down is to be applied to the present ease, the plaintiffs must fail and the judgment of the court of common pleas must be reversed on that ground, but our own Supreme Court seems 'to have modified this rule somewhat.

In the case of B. & O. R. R. Co. v. Stankard, 56 O. S., 224, suit was brought by the parents of Michael Stankard who, having been an employe of the railroad company, died, and the claim was that he was such employe at the time of his death. Suit was to recover for death benefits provided under certain regulations of the company. The claim was presented to the superintendent of the relief department, who did not allow it, but referred it to the advisory committee, who rejected it because of his failure to report in accordance with the regulations. On the part of the company it was urged that the suit was barred under rule 11 of the relief department, which reads;

“All claims of members of the relief feature, their beneficiaries or other representatives * * * arising under these regulations and all other questions or controversies of whatsoever character arising in any manner or between any parties or persons in connection with the relief department or the operation thereof, whether as to the construction of language or meaning of the regulations, or as to any writing, decision, instruction or acts in connection therewith, shall be submitted to the determiation of the superintendent of the relief department, whose decision shall be final and conclusive thereof, subject to the right of appeal in writing to the committee within thirty days after notice to the parties interested in the decision.
“When an appeal is taken to the committee, it shall be heard by them without further notice at their next stated meeting # * * an¿ the decision arrived at thereon by the committee shall be final and conclusive upon all parties without exception or appeal.”

As to this the court say:

“The reference of the claim' to the advisory committee was the equivalent, and took the place of an appeal.”

On page 231 of the opinion, this language is used:

“A long line of decisions hold that parties can not, by contract, take away the jurisdiction of the courts in such cases, and that the attempt to do so is void. ’ ’ Citing several case

Again, the court say:

“Such contracts are in their nature only applicable to eases wherein it becomes necessary to fix some facts, leaving the question of law to be settled by the courts upon proper proceedings. The ultimate question to be determined — the liability or non-liability of the parties — must be left to the courts. The construction of a written contract is a question of law for the court, and a provision in the contract that the construction of such contract, or the meaning of rules or regulations, shall be finally determined by some designated person, is void, because the court can not be robbed of its jurisdiction to finally determine such questions. In insurance and other like eases, where the ultimate question is the payment of a certain sum of money, certain facts may be fixed by a person selected for that purpose in the contract, but the ultimate question as to whether the money shall be paid or not, may be litigated in the courts, and a stipulation to the contrary is void. The fixing of the particular fact by the person or persons named in the contract, and in the manner therein provided, is usually a condition precedent to the bringing of an action on the contract, and the performance of such condition should be averred in the petition, or some good excuse given for its non-performance.
‘ ‘ In- the ease at bar, the claim having gone through the course provided by rule eleven, and having been rejected, the parents had the right to go into a court of justice and establish their claim; and in the trial, the fact that the claim had been so rejected was not a bar to a recovery. In so far as rule 11 attempts to cut off the right of action in court, it is null and void.”

The syllabus in this case, page 244, reads:

“One of the rules in the relief department of a railroad company provided that all claims of beneficiaries should be submitted to the determination of the superintendent, whose decisions should be final and conclusive, unless appealed to the advisory committee, and in case of such appeal, the decision of the committee should be final and conclusive upon all parties without exception or appeal. Held: That after the rejection of a valid claim by the advisory committee, the beneficiary could maintain an action in the court for recovery of the money due thereon, and that such rule is not a bar to the action.”

The case of Mansfield & Sandusky City R. R. Co. v. Veeder & Co., 17 Ohio, 385, is, as we think, much like the case at bar, and there the court held that:

“When, by the terms of the contract between a railroad company and a contractor, the estimates of the engineer are to be binding upon the parties, a court of chancery has power to correct the mistakes of the engineer.
“In construing the contract, the court will use the terms employed by the parties according to their popular signification, if to apply them according to technical and scientific rules would defeat the manifest intention of the parties.
“Words of doubtful meaning will be so construed as to carry out the apparent intention of the parties.”

If, then, in the estimate of the engineer he was clearly mistaken in his estimate, the court below committed no error in correcting such mistake.

A part of the contract was the specifications and plans submitted to the contractor on which he made his bid. The structure contracted for was a bridge supporting the tracks of the L. S. & M. S. R. R. over a public driveway called Edgewater Boulevard. The top of this was? of course, to be level, and there was to be an arebway under this bridge of such dimensions as to provide for a broad carriage or driveway. The plans show that the greater part of the masonry was to be of stone, but the archway, from a point about-feet above the earth on either side, and extending from side to side was to be of brick, faced at the ends with stone, using the word ends as meaning that part facing one as he approached the arch on the driveway from either direction. At the ends of the arch on either side of the driveway, using the word ends as meaning that part of. the arch nearest the ground, was to be stone masonry, the stones so cut as to continue the curved line of the brick arch for several feet; further down toward the earth inside of such curved line of the stones, however, to be stone masonry, the stones cut with the upper and lower sides parallel, and laid up against the curved line, formed of stone, already mentioned, the lines of these stones next the driveway being perpendicular to the surface of the earth.

From this somewhat imperfect description, it will be seen that a part of the masonry laid in arch form was to be of brick and a part of stone; that some of the stone masonry so to be laid was to be the facing of the brick work, and a part was to be that which supported the brick arch, at its lower ends. The engineer allowed as arch masonry all the brick work of the arch and so much of the stone work as constituted the facing of the brick work at outer ends.

The correction made by the trial court allowed all the stone work which was laid in arch form with the curved line, as already mentioned, as arch masonry.

The only contention between the parties here is as to which was right in this allowance.

Nothing was allowed by the trial court as arch masonry which was not laid with the curved line for its inner or under surface. It will be noticed that the contract recognizes that a part of the stone masonry shall be arch masonry, because the third item of prices reads:

“For all stone masonry in the work, except the arch masonry * * * the sum of seven dollars and fifty cents ($7.50) per cubic yard.”

And the fourth item reads':

“For all arch masonry eleven dollars and fifty cents ($11.50) per cubic yard. ”

It is clear then that whatever arch masonry was to be laid, whether of brick or stone, was to be paid for at the higher rate.

On the part of the city, however, it is urged that taking the entire contract and considering the use of the terms “arch masonry’-’ and “stone masonry” as understood by builders and engineers in a contract like this, no part of the stone work, aside from the facing, should be estimated as arch masonry. As bearing upon this construction, attention* is called to the estimates made by the engineers and submitted to the contractor, before the contract was made, of the probable amount of the several kinds of work to be done. These estimates show stone masonry 3,600 yards, and arch masonry 800 yards. These estimates were given as approximate only, but were given for contractors to have an approximate idea of the amount of work to be done, and for use as a comparison of the bids. It is noticeable that these approximations are much nearer to the amounts allowed by the engineer in his final estimate than to the amounts allowed by the court, the approximate estimate made in advance being—

Arch masonry ..................... 800 yards.

Final estimate .................... 644.46 yards.

Stone masonry ..................... 3,600 yards.

Final estimate ..................... 3,774.74 yards.

while the amount allowed by the court was—

On the arch masonx-y............... 1,583.46 yards.

On the stone masonry.............. 2,795.70 yards.

These facts are somewhat significant, and tend to show that these appi’oximate estimates were based upon the same construction of the terms “arch masonry” and “stone masonry,” as given in the final estimate.

It is clear that “arch masonry” and “stone masonry” are not necessarily different things. “Stone masonry” may or may not be “ax*ch masonry” and “arch masonry” may or may not be “stone masonry.” This is recognized in the third item of prices to be paid as hereinbefore quoted, viz., “For all stone masonry in the work except arch masonry,” etc. The contract provides that “the arch” except at the ends, shall be of brick masonry, and the claim is made and the evidence tends to establish, that the “ends” of the arch are the faces seen by one approaching in either direction on' the driveway which passes under the arch. It seems, however, that in ordinary language the words “ends of the arch” might be used to designate that portion of either side of the driveway which come nearest to the earth.

Baker, Estep, Payer, Adams & Carey, for plaintiff in error.

Albert Lawrence and Brady & Cashman, for defendants in error.

It is provided in the contract that the cement used in the arch masonry shall be of the best quality of Portland Cement. The stone masonry was to be laid in American Hydraulic cement, and it is urged that this language indicates that the terms “arch masonry” and “stone masonry” are used in contradistinction in the contract.

It, in connection with other parts of the contract, we think clearly indicates that the contract was not carefully drawn, ■and that words were used sometimes with strict accuracy and sometimes with less regard to their technical meaning.

It is clear that the expense of putting in stone masonry in arch form was fully as great as putting in brick masonry in the same form, and was so much greater than putting in stone masonry with vertical joints that it can hardly be supposed that in making this contract- for a structure which was to contain nearly 50 per cent, more of stone masonry laid in arch form than of brick arch masonry, and more than one-third as much stone masonry in this form as there was to be of stone masonry laid with vertical joints, the distinction in price of $4 per yard was to be simply between the masonry laid in brick with a comparatively small amount of stone work for the facing of the brick, and the entire body of the work other than this facing which was to be done in stone.

We reach the conclusion, therefore, that there was no error in the judgment of the court of common pleas, and such judgment is affirmed.