text:
    PURCHASER. OF A BULL AFFECTED WITH TUBERCULOSIS PERMITTED TO RECOUP HIS DAMAGES.
    Court of Appeals for Mahoning County.
    A. M. Carr et al v. John S. Miller.
    Decided, March 10, 1914.

      Sales — Representation as to Value — Seller Bound Although Representations May Rave Been Innocently Made — Owner of Property in this Case Bound by Representations of Auctioneer.

    When the seller has made representations which were untrue, materially affecting the value of the. property sold, for the purpose of inducing the sale, and the purchaser relying thereon made the purchase; in an action to recover the purchase price of the property sold, the purchaser can recoup the damages that he has sustained by reason of such representations, and it is immaterial that they were innocently made.

      Hine, Kennedy & Manchester, for plaintiffs in error.

      M. C. McNab, contra.
    Pollock, J.; Metcalfe, J., and Norris, J., concur.
   The defendant in error, J. S. Miller, brought an action in the court of common pleas of this county against the plaintiffs in error to recover on a promissory note in the sum of $210.

. The defendants below answered alleging that $170 of the consideration for this note was the purchase price of a bull, which defendants below had purchased from plaintiff below. They allege that they were induced to purchase this animal by the fraudulent representations of plaintiff below, and further that the plaintiff below through his agent, S. B. Parshall, warranted this animal to be sound and all right. They further allege that the representations made by plaintiff below were not true; that at the time of the sale of said animal it then had tuberculosis, which was discovered shortly after the purchase, and that defendants below were required to slaughter said animal ; that plaintiff below was notified of its condition the animal tendered back and a demand made that said note be surrendered, which was refused.

The defendants below ask damages in the amount of the purchase price named in this noté, and also damages for the care and keep of this animal in the sum of $20.

To this answer the plaintiff below replied, admitting that the amount of the consideration in this note claimed was for the purchase price of this animal, and that afterwards the animal was slaughtered by the defendants below, and deny the other allegations of the answer, and also deny any wrongdoing or any liability on the part of the plaintiff below.

The case went to trial on the issues raised between the answer and the reply, resulting in a verdict in favor of plaintiff below. This action is prosecuted to reverse that judgment for errors which it is claimed occurred on the trial of the case.

It appears from the testimony that Miller was the owner of a herd of Jersey cattle; that on November 9,. 1911, he offered these cattle for sale at public .auction, and that defendants below purchased at this sale the bull mentioned in the pleadings, paying therefor the sum of $170, and also purchasing another animal; and the note sued on was given for the purchase price of these two animals.

On the 30th and 31st days of October, prior to this sale, Miller, the plaintiff below, caused this herd of cattle to be tested for tuberculosis by S. B. Parshall, a veterinary surgeon. This was done by Miller to induce prospective purchasers to pay a better price for the cattle; he knowing that cattle of this kind will not readily sell unless such a test has been made and the cattle found free from this disease, or the purchaser is given the right after purchase to make the test.

On the morning of the sale, and just before it was opened, Mr. Parshall, under the direction of Mr. Miller, made the announcement that all the cattle had been tested for tuberculosis; that they showed no reaction, and he exhibited the- testing sheet, announcing that any one could examine it who wished, and handed it to Mr. Dempsey, the auctioneer.

It is unnecessary to explain what this testing consisted of, or what it meant by “reaction,” further than to say that persons engaged in the cattle business, would understand that if the test showed no reaction the animal was free from tuberculosis, but that if it showed reaction it was afflicted with that disease.

This test which Mr. Parshall had made for tuberculosis is regarded by the authorities on that subject as the most accurate test for determining whether cattle are afflicted with tuberculosis, which is known to persons engaged in the cattle business.

Mr. Miller, the seller, and Carr and Campbell, the purchasers, were experienced cattle men and understood that the announcement that the cattle showed no reaction meant that they were free from tuberculosis. Defendants below testified that they would not have purchased this animal except for the representations made by Mr. Parshall, and that relying on these representations they believed the animal to be free from the disease of tuberculosis.

Some time after the sale this .animal was removed to the barn of the defendants below, and on January 19, 1912, was again tested by Dr. Frederick, a state official, for tuberculosis, and found to be very badly afflicted with that disease. Defendants below were ordered to quarantine the animal, which they did, and they also notified Mr. Miller of the condition, offering to return the animal. This was declined by Mr. Miller, and some time in March the animal was slaughtered by Dr. Frederick.

The first error complained of is the court’s refusing to permit the defendants to amend their answer by making the warranty extend to an announcement made by the auctioneer.

After the introduction of the plaintiff’s testimony the defendants called Judge J. B. Kennedy and asked the following question:

1 ‘ Following the statement made by Mr. Parshall, what, if any, statement was made by Mr. Dempsey as to the test of these cattle for tuberculosis?”

This question was objected to and the objection sustained by the court, and then the defendants below asked leave to amend the answer by interlineation, by inserting the name of Mr. Dempsey, the auctioneer, in addition to Mr. Parshall, as the agent of plaintiff in warranting the cattle; this was refused by the court .and excepted to by the defendants. The record shows that the defendants expected the witness to answer as follows:

“Now, gentlemen, I am going to sell you these cattle. These cattle have been tuberculin-tested by Mr. Parshall, and when you buy them you get a clean bill of health.”

We are unable to see why this question was not competent under the allegations of the answer. It would have proven further representations made by the plaintiff below in order to induce purchasers to bid upon these cattle, and should have'been admitted without any amendment to the petition, but the defendants below did not except to this1 ruling; they only asked leave to amend the answer and excepted to the refusal to permit the ¡amendment. This is discretionary with the court, and we do not think the court violated his discretion in refusing to permit the amendment.

The next error complained of is that the court erred in charging in plaintiff’s sixth and seventh requests before argument, that in order to constitute fraud, which would be a defense in this case, the defendants must show that the seller knew the representations to be untrue, or had no reasonable grounds for believing them to be true and in repeating the same principle in charge after argument.

The rule given by the court in these two requests, and in the charge, is the rule applicable in an action to recover damages caused by misrepresentations. Taylor v. Leith, 26 Ohio St., 428; Gartner v. Conwine, 57 Ohio St., 246.

In this case the plaintiff is seeking to recover the consideration for property sold to the defendants, which as the defendants claim, they were induced to purchase on account of the false representations of the plaintiff, and the defendants are only seeking by recoupment to recover in damages the loss which they sustained by reason of this sale made to them.

“When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles can not be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject matter of the contract, that it was false, that the other party had a right to rely upon it, and that he was induced by it to make the contract, in order to entitle him to relief either by rescission of the contract or by recoupment in a suit brought to enforce it.” Mulvey v. King, 39 Ohio St., 494.

This principle was again affirmed by our Supreme Court in the case of Inwin v. Wilson, 45 Ohio St., 436.

In the case of Pierce v. Tiersch, 40 Ohio St., 172, the Supreme Court in the opinion say:

“In an action against the mortgagor for the purchase money, his right to set up a counter-claim for any excess in price through the vendor’s misrepresentations of the extent of the property, would be the same, whether such representations were wilful or innocent. ’ ’

Miller, the owner of these cattle, caused this tuberculosis test to be made, and the announcement that it was made and that there was no reaction, for the purpose of securing better prices for his cattle at this sale, and the defendants made the purchase because of and relying upon these representations. Both plaintiff and the defendants believed that if these was no reaction in making this test, the cattle were free from this1 disease.

“Where the seller makes material statements which are untrue, and the purchaser relies thereon in making the purchase, such representations are fraudulent, and it is immaterial that the seller believed them to be true.” Kirkpatrick v. Reeves et al, 22 N. E., 139.

j

To the same effect is the ease of Crowe v. Lewin, 95 N. Y., 423.

The Supreme Court of Michigan, in the ease of Buchanan v. Gould, 45 Mich., 481 (8 N. W., 73), in the opinion on page 74 say:

‘ ‘ Eor the purpose of recoupment it is quite immaterial whether as a question of morals Gould was or was not at fault. The right to recoup w,as not dependent on it. There being in fact a misrepresentation, though made innocently, its deceptive influence was as effective and the consequences to Baughman as serious in respect to actual damage as though it had proceeded from a vicious purpose.”

The plaintiff below did not intend any fraud in making the statement of which complaint is made; but by that statement the defendants below were induced to purchase this bull and lost the consideration they agreed to pay for it. The plaintiff below is now seeking to recover the consideration for this contract into which defendants below were induced to enter by the representations of plaintiff below.

■ If this animal was afflicted by this disease at the time of the sale these parties all believed that this test would have disclosed it, if no mistake had been made in making the test.

“An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.” Mowatt v. WrigM, 1 Wendell, 360.

To permit the plaintiff to recover the purchase money for this animal when the sale was induced by his representation, if it was suffering from this disease at the time, would be permitting the plaintiff to profit by his own mistake. When a loss of the value of property must be suffered, a party should not be permitted to escape that loss by recovering the consideration for a sale of the property induced to be made by his representation, which proved to be untrue, even if innocently made.

For error in giving the two requests complained of, and this error in the charge, the judgment of the court, below is reversed and remanded for further proceedings according to law. Defendant in error excepts.


source: Caselaw Access Project

license: Public Domain

text:
    RESTRICTION OF LOTS FOR. RESIDENCE PURPOSES ONLY.
    Circuit Court of Cuyahoga County.
    Ida Hillman et al v. The Belt & Terminal Realty Company et al.
    Decided, January 22, 1912.

      Restrictions — General Plan — Notice of — Common Law Dedication of Street — Abutter on Undedicated Street — Rights of.

    1. In order to enforce an alleged general plan for the restriction of all the lots in an allotment to use for residence purposes only, it must appear that sales were made with notice of the plan and under an agreement, express or implied, that the plan was to be carried out with respect to the lots sold.
    2. A common law dedication of a street is not proved by evidence that the original owner of the premises improved the street and sold lots with reference to it, referring to an unrecorded plat, that the city renamed the street, placed a sign with the new name at a corner of the street, and gas lamps on it, renumbering and cleaning the street.
    3. Abutters upon an undedicated street have a right to have it kept' open sufficiently for ingress and egress to and from their lots.

      C. N. Sheldon and William Howell, for plaintiffs in error.

      Kline, Tolles & Morley, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   Tbe plaintiffs are the owners of certain lots located in a subdivision and allotment made about the year 1900 by one C. O. Evarts, located in the city of Cleveland, the plaintiff, Ida Hill-man, owning sublot No. 1; the plain+iffs, Henry B. Ricker and Margaret A. Ricker, owning sublot No. 5, and the plaintiffs Charles Olson and Mary Olson, owning sublot No. 7.

The plat of the allotment as laid out by Evarts contained a street „ designated therein as Du Broy street, running westerly from Woodland Hills avenue through the allotment, and having no outlet at the west end, being what is known as a dead end street. This strip of land was graded, curbed, paved and otherwise improved by Evarts before the lots owned by plaintiffs were, sold to them or those through whom they acquired title. The plaintiff’s lots front on the north side of this street, and were sold with reference thereto.

Since the plaintiffs acquired their lots the defendant, the Belt & Terminal Realty Company, bought all of the lots on the other side of Du Broy street and several on the same side, and in 1910 further obtained from Evarts a conveyance of the land within the borders of said Du Broy street.

The defendant the Cleveland Short Line Railway Company has obtained title from the Belt & Terminal Realty Company, to a portion of these lots, and, it is averred in the amended petition, is about to construct a four track line of steam railroad across the same.

The defendant, J. W. Smith, on July 1, 1908, purchased of .the Belt & Terminal Realty Company a part of the lots acquired by it on the southerly side of said Du Broy street, and has erected thereon a brick factory building for the business of sawing, dressing, furnishing and selling stone.

The defendant,. W. H. AVhitmore, has likewise, under some arrangement, acquired a portion of these lots, and is using them for a place of manufacturing and compounding oils. On the south side of said Du Broy street the defendant, the New York, Chicago & St. Louis Railway Company, has built a switch, which, near the west end of the street, encroaches upon the south side of the street. In front of the premises occupied by the manufacturing business of the defendant Smith, it is upon the sidewalk portion of the street. No part of the traveled portion of the street is interfered with. This switch is used by those having manufacturing concerns on the property embraced in the allotment, and to some extent, at least, has been used by others.

It is claimed by the plaintiffs that at the time Evarts laid out the allotment and sold the lots owned by plaintiffs he restricted all the lots therein to an exclusively residence purpose, and that the defendants and each of them when they acquired their respective portions had notice of this restriction.

It is further claimed by the plaintiffs that Du Broy street became a' public street of the city of Cleveland, and that the construction of the switch-track on a portion of said street .is an invasion of their rights. They pray in their amended petition that the defendants, and each of them, be perpetually enjoined from making .any use of said lots, or any of them, contrary to said restriction, and from operating or using said switch, track along said street; and that said defendants may be required by mandatory order to remove from said lots the factory building, engines, machinery, derricks, switch-tracks, .and all other structures, objects or buildings thereon that violate in any way said restriction.

It becomes necessary, then, to determine whether the allotment in question is restricted to residence purposes only.

The deeds from Evarts to such of the plaintiffs as acquired title directly from him, and the deeds from Evarts conveying the other lots owned by the respective plaintiffs, contain no such restriction. In no deed conveying any lot in the allotment was there written such a restriction.

It is asserted by the plaintiffs, however, that Evarts after laying out the allotment upon a general plan of improvement, proceeded to sell lots in the subdivision to various persons upon the representation and promises that all of the lots in said allotment should be sold and used for residence purposes only; that sublots 1, 5 and 7 -were sold by him to the plaintiffs, or their predecessors in title, upon the express understanding and agreement that they should be used for residence purposes only, and that all the remaining lots in the allotment, all of which were then owned by him,' should be sold and used for residence purposes only; that the plaintiffs, in reliance upon said plan and in accordance with said agreement, have improved their respective lots with buildings used exclusively for residence purposes.

It is contended that these promises and representations and the plan of improvement of said street and property, imposed upon all of the lots in the allotment a restriction that they be used only for residence purposes.

That an agreement restricting the use of land may be proved by parol is laid down in Volume 1 of Jones on the Law of Real Property and Conveyancing, Section 744, and the cases cited by the author sustain this proposition. In a proper ease equity will enforce the observance of parol restrictions. To make such a case there must be present certain elements which are well stated in an article in '6 Harvard Law Review, 280, where the result of the cases is accurately announced in the following language:

“In order that relief may be granted in favor of any one purchaser against another, there must be something more than the mere covenant of each purchaser with the vendor; and also that it must appear that back of this was some general plan relating to all the lands sold, intended for the common advantage of the purchasers, and entering into the consideration of the purchases. It must also appear that the sales were made with notice of this plan and under an agreement, express or implied, that the plan was to be carried out with respect to the lots or to be sold in pursuance of it. Any purchaser of a part of this land with, notice of this plan or purpose, is subject in equity to the restrictions imposed for the purpose of carrying it out, and has the benefit of the restriction placed upon others without regard to the order of their conveyances.”

In the case at bar, the evidence relied upon to establish- the restriction fails, in our opinion, to measure up to this test, and we hold that the defendants are not restricted in the use of their lots to residence purposes only. .

This conclusion necessarily disposes of the other questions in this case, except the right of the defendants to maintain and operate the switch with its encroachments upon Du Brov street.

The plat of the allotment was never recorded. The street was never dedicated to and accepted by the city, unless there was a common law dedication by Evarts and an implied acceptance of the street by the city. The facts relied upon by the plaintiffs in support of this view are the platting of the property by Evarts on the plan produced in evidence, and the sale of lots bounding on the street and referring to the plat; its renaming by the city and placing of a sign bearing its name ‘ ‘ Quebec” at the corner of said street where it comes into Woodhill avenue, and by the placing of gas lamps on said street, renumbering the street and cleaning thé same.

In City of Toledo v. Converse et al, 21 C. C., 239, affirmed in 66 O. S., 678, part 1 of the syllabus is as follows:

“In order to constitute a completed and valid dedication of land to the public, it must appear that the owner of the land clearly and unequivocally indicated by his words or acts an intention to dedicate the same, and there must also be an acceptance thereof by the public.”

In Railroad Co. v. Village of Roseville, 76 O. S., 109, it was held:

“To show the establishment of a street by a common law dedication, it is essential to prove clearly that the owner of the land intended to donate it for that use, and to prove also an acceptance.
“An intention by a railroad company to dedicate a street is not clearly shown by proof that a way over its tracks and unenclosed lands had been used for about forty years by the public, when during the entire time the way was maintained by the company, and was used by its patrons and the use by the public was merely permissive.
“An acceptance by a city or village of the dedication of a street can not be shown by proof of user by the public, but it is essential that acts of acceptance by proper officials be shown.”

The evidence fails to indicate clearly and unequivocally an intention on the part of Evarts to dedicate this street, and there is no sufficient evidence that the city ever accepted the same.

The plaintiffs can not, therefore, complain of the presence of the switch as an obstruction to a public street, ffirt must stand upon the peculiar injury, if any, done to them, in their property rights in said street.

In spite of the fact that the street is not a public one, the plaintiffs are entitled to have it kept open for access to their respective properties, and if such .access were interfered with or obstructed, it would be an invasion of their property rights, which, under proper circumstances, would entitle them to an injunction. Such is not the ease, however. The entire track is on the opposite side of the street from their property and encroaches only slightly upon the street, where it does at all. The plaintiffs have free and unobstructed access to their respective houses over the entire width of the street for the greater part of the way, and over much more than half of the width of the rest of the way.

In Herzog et al v. Railway Co. et al, 6 C.C.(N.S.), 527, it was held that injunction would not lie to restrain the laying of a spur track in a public street, and the holding was based on the ground that ingress and egress to and from the property of the plaintiff: were not interfered with. This case was affirmed by the Supreme Court, without report, in 74 O. S., 440.

In Smedes v. Railway, 16 O. D., 743, it was held:

“Injunction will not lie to restrain the laying of a surface spur track and the erection above it of a single open truss bridge on the opposite side of the street from the plaintiff’s property, there being no injury of a sp'ecial kind peculiar to him and not shared by him in common with other lot owners abutting the streets.”

■It was also decided in Gunnin v. Railway Co., 2 N.P.(N.S.), 411, that the laying of a spur-track in the street, as distinguished from a track for general railroad purposes, is not such a diversion of the street from its ordinary uses as to interfere with the private rights of abutting owners, or beyond the power of council to authorize, and that injunction against the laying of such a track will not lie on the petition of an abutting property owner, where it does not appear that any of his rights or property in the street will be materially interfered with, and who having notice of the proposed construction did not file his petition for several months, or until the work was nearly completed.

In view of the conclusion stated, it is unnecessary to consider the effect of the delay of the plaintiffs in beginning this action until this switch track was laid.

The relief sought by the plaintiffs is denied, and the amended petition is dismissed.


text:
    CONSPIRACY TO DEFRAUD AN ABANDONED WIFE.
    Court of Appeals for Carroll County.
    Samuel T. Iddings and Alban H. Elliott v. Anna M. Whitacre.
    Decided, December 16, 1913.

      Abandoned Wife — Rights of, as a Creditor of Her Husband — Attach Before the Entering of Judgment for Alimony — Property Fraudulently Transferred in Effort to Defeat Her Claim — Conspirators Compelled to Respond in Damages.

    1. Where I and E conspire with a hugband to defraud his wife of her right of alimony and dower in the husband’s property, and in pursuance- thereof, I, who holds the legal title to the real estate of the husband, in trust, conveyed it to E and he mortgages the real estate for. its value to an innocent mortgagee, and gives the husband the proceeds of the mortgage debt to aid him in converting his property into money and leave the state, I and E are liable in damages to the wife for the amount of her judgment for alimony and the present worth of her dower interest, not in excess of the reasonable value of the real estate so transferred.
    2. That the wife has not obtained her judgment for alimony at the time of the fraudulent conveyances - of the real estate will not defeat the action.

      McDonald & Oglevee, for plaintiffs in error.

      H. E. Eckley, contra.
    Pollock, J.; Metcalfe, J., and Norris, J., concur.
   The defendant in error brought an action in the court of common pleas of this'county against the plaintiffs in error herein, Rachel Iddings and Olive A. Elliott, to recover a judgment for damages, on the grounds that the defendants below entered into a conspiracy with her husband, Harvey B. Whitacre, to cheat and defraud her by converting all his property into money, in order to enable Whitacre to take his money beyond the jurisdiction of the court, and prevent her from recovering alimony and depriving her of her right of dower in her husband’s real estate,

Issue was joined by separate answer of the defendants, a jury was waived and the ease went to trial to the oourt, resulting in a judgment in favor of the plaintiff below against Samuel T. Iddings and Alban H. Elliott, and in favor of Rachel Iddings and Olive A. Elliott. This action is prosecuted to reverse that judgment, on the ground that it is against the weight of the evidence and the law.

The facts in this case, gathered from the testimony introduced below, show that Harvey B. Whitacre, then unmarried, on the 2d day of July, 1906, transferred by general warranty deed to Samuel T. Iddings the real estate described in the petition. That this conveyance was made to avoid the results that might ensue from a threatened action for slander; that at the time the deed was made Iddings executed an agreement, by which he agreed to convey back the real estate upon demand to Whitacre, or his assigns. That at the time of .this transaction there was no contemplated contract of marriage existing between! the plaintiff below and Harvey B. Whitacre, but that afterwards on November 17, 1908, they were married. This marriage did not prove agreeable, and by March, 1909, the said Whitacre had determined to abandon his wife, and for the purpose of preventing her from subjecting his property to her support or payment of alimony or dower, he determined to convert his property into money, and this purpose was known at that time to the said Samuel T. Iddings. Iddings arranged a meeting between Whitacre, Elliott and himself; at that meeting Whitacre made known his purpose of converting all of his property into money, for the purpose of p]acing it beyond the reach of his wife, and he solicited Elliott to purchase his farm and take the deed from Iddings direct to himself. Either at this or a subsequent meeting, Whitacre, Iddings and Elliott entered into ah arrangement by which' Iddings and his wife should transfer by warranty deed the real estate owned by Whitacre to Elliott; that Elliott was to mortgage -it for two thousand dollars and pay the money to Whitacre, which was afterwards done. This was done with the intention and purpose of placing the property of Whitacre beyond the reach of his wife, and depriving her oí her marital rights in the property of her husband.

The notes and securities owned by Whitacre had some time prior to the making of the deed for the real estate been transferred to Iddings to hold for Whitacre. About the time of these negotiations for the transfer of the real estate these notes and securities were returned to Whitacre for the purpose of converting them into money, the intention of Whitacre to convert the same into money being known to Iddings .and Elliott at the time of the transfer of the real estate.

On May 1st, 1909, the plaintiff below commenced her , action against her husband, Whitacre, and the defendants below in this action and Bower, the mortgagee of Elliott, to obtain a judgment against her husband for alimony, and to set aside these several conveyances of her husband’s property, on the ground that they were made to defraud her. At the bringing of that action she caused an injunction to issue enjoining the collection of the notes and securities, and enjoining the transfer of the real estate. This action went to trial, resulting in a judgment for alimony in the sum of one thousand dollars, and costs, and a decree setting aside the several conveyances, except the mortgage to Bower, which was held valid. She caused an execution to issue and for want of goods and chattels on which to levy, the same was levied upon the real estate described in the petition; she then caused contempt proceedings to be begun against her husband for failure to pay the alimony judgment, but the writ was returned without service having been made upon him, for the reason that he could not be found by the officer attempting to execute the writ.

Proceedings were then had to sell the real estate and apply the proceeds to the payment of the mortgage lien and the judgment for alimony, which resulted in the sale of the property for the sum of twenty-three hundred and twenty dollars, which was about the full value of the property, and less than sufficient to pay the costs, taxes and the mortgage, leaving the judgment for alimony wholly unpaid and unsatisfied.

On the next day after the hearing of the testimony in the alimony proceeding, and before the judgment was announced by the court, Harvey B. Whitacre left the state of Ohio, taking with him in money something over three thousand dollars, being all of his property.

The defendant, Samuel T. Iddings, is the husband of Eachel Iddings, who is a sister of Harvey B. Whitacre; the defendant Olive A. Elliott, is the daughter of Whitacre, by former marriage, and the wife of Alban E. Elliott.

A husband, both by common law and the statutes of this state, is required to support his wife. By the statute of this state the husband must support himself, his wife and his minor children, out of his property or by his labor. (General Code, Section 7997.)

Thus, the property of the husband is subject to the support of his wife, except where the rights of bona fide creditors intervene, and she can not lawfully be deprived of this interest in her husband’s property; she is a creditor of her husband to this extent. The husband owes to his wife the utmost good faith, and it is a fraud upon her for her husband and others to convert his property into money with the intention of depriving her of her right of support and dower in his property. This principle is recognized by our Supreme Court, where the contract of marriage existed (Ward v. Ward, 63 Ohio St., 125). If such is the case where the contract only exists, much more should it be the rule where the marriage has taken place.

A judgment for alimony is only the legal means of compelling a husband, who has abandoned his wife, to support her. She is just as much a creditor and just as much entitled to the benefit of his property for her support before a judgment for alimony is entered, as she is afterwards to subject his property to the payment of alimony.

The property of .a debtor conveyed in fraud of his creditors, in the hands of a fraudulent grantee, is subject to the payment of the claims of the creditors of the. debtor, and where the grantee has placed the property of the debtor beyond the reach of the creditors, he is subject to a personal judgment for the value of the property. This principle is recognized by our Supreme Court in the case of Donley v. Clark, Adm’r, 55th Ohio St., 294.

In the case of Ferguson v. Tillman, 12th N. W., 389, the court went further .and laid down the rule that where the fraudulent grantee had sold the property of the debtor, he could not be protected • for the money or other consideration he may have paid for the transfer of the property to him, as against the creditors of the debtor, but was liable for the full amount of the proceeds of such property. This is on the principle that the fraudulent grantee holds the property in trust for the creditors of his grantor, and as trustee must account for the full amount of the proceeds.

Iddings, the grantee of Whitacre, held the real estate of Whit-acre in trust for his wife, so far as her marital rights might require the property. Elliott, when the property was conveyed to him by Iddings, took it charged with the same trust. Following the principle announced in the above ease, he must account to Mrs. Whitacre for so much of the proceeds of the mortgage he placed on the property as her marital rights are reasonably worth. Iddings being a joint wrong-doer with Elliott, is jointly liable.

In the case of Adams v. Page, 7th Pickering, 541, it was held that an action for conspiracy would lie in favor of ,a creditor against his debtor and a third person, who by agreement with the debtor, had caused the debtor’s property to be attached on a fictitious claim, and deprived the creditor of the payment of his claim on a subsequent attachment of the same property. This was placed on the ground that there was an unlawful act in causing the fictitious attachment to issue, and an injury by depriving the creditor of the property upon which he had placed an attachment.

Again in the case of Mock v. Danforth, 31st Am. Dec., 468 (6 Watts, 304), it was held that:

“Where two persons conspire with a third to defraud the latter’s creditors, and in pursuance thereof, take an assignment of his property, and aid him in leaving the state, they are liable in an action upon the ease to such creditor.
“That the debt of a creditor is not due at the time of the conspiracy is no objection to such action.”

It is true that the rule laid down in this latter case has been criticised and not followed in many subsequent decisions. The reason given for not following this, is that the creditor had a right to sell his property and receive the purchase money, and that the intention with which it was done could not affect the right to purchase; .and further, that the creditors were only general creditors of the debtor, and had no lien or claim on the property, and the loss or injury would be too remote, contingent and uncertain to base an action for damages.

The defendants below and Whitacre conspired to deprive plaintiff of her marital right of support and dower in Whitacre’s real property. When her husband had abandoned her, and she was compelled to secure.her right of support in a suit for alimony, she sought by all the legal means at her command to subject the real estate conveyed by the defendants in fraud of her right to the payment of her alimony.

But again, by a statute of this state a contract of sale made with intent to hinder, delay or defraud a creditor, shall be void as to the creditor of such debtor, at the suit of the creditor (General Code, Section 11104), when the person to whom such sale was made knew of such fraudulent intent on the part of such debtor prior to his purchase (General Code, Section 11105).

And further, our statute provides that whoever fraudulently makes a conveyance to defeat his creditors is guilty of an offense (General Code, Section 13126). When these plaintiffs in error were conspiring with Whitacre to fraudulently transfer his property, and converted it into money that he might leave the state, taking his money with him, they were conspiring together to do an unlawful act.

“ It is the pride of the common law that whenever it recognizes or creates a private right, it gives a remedy for the wilful violation of it. * * * It is a sound principle that where the fraudulent misconduct of a party occasions injury to the private rights of another, he shall be responsible in damages for the same.” Yates v. Joyce, 11 Johns, 136.

The wife has a right of support both by common law and statute from her husband out of his property or labor, and when the husband abandoned his wife the law enforced this right by granting her alimony out of her husband’s property. The plaintiffs in error, knowing that her husband had abandoned the defendant in error, fraudulently conspired with him to convert his property into money, to enable the husband to take all of his property out of the state, and deprive her of her marital rights in his property.

Defendant in error sought to subject the real estate of her husband to the payment of her judgment for alimony, and was prevented by the fraudulent transfers of the property made by the plaintiffs in error. By reason of their fraudulent misconduct the wife has lost her rights in her husband’s property, and plaintiffs in error are responsible in damages to. her to the amount of the loss occasioned by their misconduct.

The defendant in error, Anna M. Whitaere, filed a cross-petition against Rachel Iddings and Olive A. Elliott, asking that the judgment below in favor of them be reversed. It is sufficient to say that no act of conspiracy is shown on their part. No doubt they know of the reasons for these conveyances, but they seemed to have taken no part in the transaction, except that Mrs. Iddings joined in the deed with her husband to Elliott, and Mrs. Elliott in the mortgage with her husband to Bower.

The judgment of the court below is affirmed.


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    CONDUCT AMOUNTING TO DISCONTINUANCE OF CAUSE.
    Circuit Court of Cuyahoga County.
    Frank Lyons v. C. C. McMahon, Constable, et al.
    Decided, January 22, 1912.

      Justice of the Peace — Failure to Call Case Within One Hour of Time Set for Hearing — Discontinuance.
    If the defendant in a justice court action appears at the time mentioned in the summons, and remains for an hour thereafter, and the plaintiff does not appear, whereupon the defendant departs without any action haying been taken in the case, the result is a discontinuance of the case, and the justice has no jurisdiction, at some later day, to enter judgment against the defendant.

      F. P. Beers and Harry Payer, for plaintiff in error.

      Stearns, Chamberlain & Royan, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   On August 17, 1911, James Thompson & Bro., a corporation, one of the defendants in this action, began suit against Frank Lyons, the plaintiff here, in the court of William H. Chapman, a justice of the peace in and for Cleveland township, to recover the balance claimed to be due on an account for goods sold and delivered. Summons was duly issued and served upon the defendant in said suit, requiring him to appear at the city hall at the office of said justice of the peace on the 16th day of August, 1911, at 8:30 o’clock a. m., to answer to said suit.

On the day, and at about the hour mentioned in the summons, Lyons went to the office of the justice of the peace, which was not open at the time he arrived, but which was opened a few minutes after 9 o’clock. He had with him the copy of the summons served upon him, which he showed to the clerk/ of wdiom he asked information concerning the case. The clerk, after searching through his files and failing to find any file envelope or other record of the case, and after speaking to the justice himself about it, informed Lyons, in substance, that there seemed to be no such case there against him. Lyons remained in the court room until after 30 o’clock and during the time he was there no one appeared for the plaintiff, and the case was not called.

The evidence is undisputed that on the 14th of August, two days before the time mentioned 'in the summons for the defendant to appear, the attorney for the plaintiff in the action had requested a young man, who was acting as assistant to the clerk in the justice’s office, to continue the case to September 6th, 1913, and that in compliance with this request, there was written on the file envelope thereof a notation to the effect: “Continued by consent to Sept. 6, 1911, 9 :30 a. m.”

It appears from the transcript of the justice’s record that on September 6th, 1911, at 9:30 a. m., the case was called, and the defendant not appearing, judgment for $291.81 and costs was entered against him.

Lyons had no knowledge of the rendition of judgment against him until C. C. McMahon, a constable, the other defendant in this action, acting under an execution issued thereon, levied on his personal property and put a keeper in his place of business.

In this action, which is here on appeal, the plaintiff seeks to have the judgment rendered against him in the justice court declared void and of no effect and the defendants herein perpetually enjoined from enforcing the same.

Section 10246 of the General Code, relating to actions before justices of the peace, provides as follows:

‘ ‘ The parties are entitled to one hour after the time mentioned in the summons for appearance in which to appear, but are not bound to remain longer than that time unless both parties have appeared and the justice, being present, is engaged in the trial of another cause. In such ease he may postpone the time of appearance until the close of such trial. ’ ’

If the defendant in a justice court action, then, appears at the time mentioned in the summons, and remains for an hour thereafter, and the plaintiff does not appear and the defendant departs without any action having been taken, the result is a discontinuance of the case, and the justice of the peace has no jurisdiction to enter judgment against the defendant at some later date.

This is the situation presented in the case at bar. The plaintiff, Lyons, complied with the terms of the statutes, and the judgment rendered against him on September 6, 1911, was rendered without jurisdiction over his person and was absolutely void.

The attempted continuance from the hour mentioned in the summons on August 16th, 1911, to September 6, 1911, was of no effect. It was not granted on application to the justice of the peace himself, but by one who had no official standing of any kind, nor was it 'made by consent, ,as the file envelope and the transcript of the record, uneontradicted, would indicate. While the attempted continuance was undoubtedly made without any intention of deceiving the defendant or of taking any advantage of him, it was done without his knowledge and resulted in a judgment being rendered against him without any opportunity of making a defense.

When Lyons first discovered that a judgment had been rendered against him, the statutory time for taking an appeal had passed, and he was also unable to take advantage of the provisions of Section 10377 of the General Code providing a methoci of setting aside judgments irregularly rendered before a justice of the peace, because of lapse of time. There was no other remedy at law to avoid the effect of the judgment, and having pleaded in his amended petition herein that he has a valid defense to the action in which the judgment was rendered, and sustaining this allegation by proof, he is entitled to the equitable relief which he seeks, and a decree is accordingly granted in accordance with the prayer of his amended petition.


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    OBLIGATION TO MINE COAL NOT RELIEVED AGAINST BY BURNING OF THE APPLIANCES.
    Court of Appeals for Mahoning County.
    The Morris Coal Company v. John A. Thompson et al.
    Decided, December Term, 1913.

      Action to Recover Royalties on Unmined Goal — Work Stopped by Fire —Amount of Goal Remaining Not Sufficient to Warrant Expense of Replacements — Lessee Held for Royalties on Goal Remaining in the Gh'ound.

    When a party by his own contract creates a duty or a charge upon himself, he is bound to make it good, if he may, notwithstanding any agreement by inevitable necessity, because he might have provided against it by his own contract. Hence, where a coal mining company, owning and operating in mining coal, divers and sundry structures, including shaft, tipple, scales, tracks, and all other necessary machinery and appliances on lands adjoining those of the lessor, enters into a contract of lease with the lessor whereby it purchases and agrees to mine all the minable coal underlying lessor’s farm of 366 acres, and agrees to pay ten cents royalty for each 2,000 pounds, and after six months to pay said lessor an aggregate royalty of not less than $4,000 until all the said minable coal has been removed or paid for, and after 150 acres of said demised coal has been mined and paid for, the tipple and appliances by means of which said coal was mined and was intended to be mined were destroyed by fire without fault of said lessee, and it would be unprofitable for the said lessee to reconstruct the same for the purpose of mining the amount of coal remaining in said mine on said land, and said lessee had intended to mine said coal through said existing shaft and tipple and had not otherwise provided therefor.

      Held: That there was no implied condition that the destruction of said tipple and appliances without fault of the lessee should relieve it from the obligations of said contract, but that it was still bound to mine the minable coal underlying said premises until the same was mined or removed or pay the premium royalty provided for in said lease.

      Tolies, Rosamond, Bell (& Dugan, for plaintiff in error.

      R. F. Scott, contra.

      Statement.
    Plaintiff in error seeks to reverse a judgment of the court of common pleas in favor of the defendants in error rendered on a lease for the sale of coal. The petition of the plaintiffs below sets up that on the 10th day of November, 1903, they leased, let and granted to the predecessors of the defendant below all the minable coal commonly known as No. 7 vein, four feet or over thick, underlying certain premises which are described as containing 336 acres more or less; that by the terms of the lease the lessee was to begin mining said coal within six months from the date of the same, and from thence forward to diligently prosecute the mining without discrimination or unfairness, until all the minable coal in said premises should be mined, .and to pay for each two thousand pounds of coal the sum of ten cents, payable monthly; that after the expiration of said six months they should pay said lessors an aggregate royalty amounting to not less than four thousand dollars, and to continue to pay said royalties until all said coal had been removed or paid for; that the lessee continued to mine said coal until the 10th day of May, 1910, when they ceased and since which time they have refused to pay plaintiff any sum whatever, and they ask to recover such royalty at four thousand dollars per year.
    A copy of the lease is attached to the petition containing several provisions not necessary to state except perhaps a provision that if the territory was exhausted to such an extent that forty thousand tons of coal could not be mined and removed in one year by reason of “horsebacks” or the thinness of coal, so that it would be impossible to produce forty thousand tons by diligent operation,' the lessee should be charged royalty only upon the tonnage actually produced.
    To this petition an amended answer is filed, setting up that at the time of making the agreement mentioned in the petition, the defendant owned and operated a coal mine known as King’s mine; that it owned divers and sundry structures used in connection with the operation of said mine, including shaft, tipple, hoists, screens, scales, tracks and other machinery and applianees; that this shaft and tipple and appliances were situated upon' land adjoining the plaintiff’s land mentioned in the petition and about one thousand feet distant from said lands; that these appliances had cost about forty-six thousand dollars, which was the reasonable value thereof; that after making said agreement the same was improved until plaintiff had invested in said shaft, tipple and equipment about sixty thousand dollars; that beginning at the time mentioned in said agreement and continuing diligently and continually thereafter until the destruction of said tipple and appliances, defendant did without discrimination or unfairness, mine and remove about one hundred and fifty acres of the coal demised by plaintiff, as aforesaid, being about four hundred and fifty thousand tons of lump coal; that in said agreement no surface was demised, let or granted to defendant, nor was any right or privilege to use plaintiff’s land surface, or any part thereof; that the royalty paid, ten cents per ton of lump coal, was in excess of the rate theretofore paid for mining from said vein; that on the 7th day of February, 1910, without the fault of defendant and against its will, the whole of said. plant above ground was destroyed by fire; that thenceforth it wás impossible for the defendant to mine and produce the coal then remaining unmined in plaintiff’s land; that the said property has not been replaced or restored; that because of said destruction and for no other reason, defendant quit said mine and since said time has not operated the samé or any part thereof, and defendant at once removed its property from and surrendered possession of said premises to the plaintiff, and wholly abandoned the same; that the reasonable cost of replacing said destroyed plant, or of building the equivalent thereof would greatly exceed the reasonable and ordinary profit which could or would be made from mining and producing such minable and unmined coal as underlying plaintiff’s said lands, and would exceed the total amount of royalty payable to plaintiff at the rate of four thousand dollars per annum during the term or years reasonably and ordinarily required for the mining of the minable coal demised as aforesaid by the plaintiff.
    To this answer a demurrer was filed by the plaintiff which was sustained, and the defendant not desiring to plead further, judgment was rendered on the pleadings in favor of plaintiff. The points claimed by the plaintiff in error in these pleadings, as stated by brief of counsel, are as follows:
    1. Plant on outside built and in use before and when contract was made more than nine years ago.
    2. More than 1,200 acres opened up by entries and underground working before contract made.
    3. The plant destroyed was and has been the only existing plant or approaches whereby Thompsons ’ coal could be reached.
    4. No surface right for a new mine opening or for erecting plant is given by the contract, and there is no mining plant' anywhere on Thompsons’ land. In other words, the plant can not be replaced there.
    5. Plaintiff in error had explored this territory and all adjacent territory, before the fire, and had destroyed all the accessible coal.
    6. What remained unmined, owned by Thompsons and others, is not sufficient to warrant restoration of plant.
    7. The ten cent royalty was dictated because defendant in error intended, and plaintiff in error expected to and could reach Thompsons’ coal without outlay for plant or entries; in other words, through the means at hand when the contract was made. In any other view it was excessive.
    8. The allegation of impossibility as a fact.
    9. The mutual intention to mine and produce Thompsons’ coal through and by means of said plant and not otherwise.
    10. That plaintiff in error has abandoned the coal granted and has not retained possession.
   Opinion.

Norris, J.; Metcalfe, J., and Pollock, J., concur.

It is claimed by plaintiff in error that from the facts stated in the pleadings there was an implied condition that the coal in the land of the plaintiff below was to be mined through and by means of the shaft and tipple then in operation on the adjoining land theretofore constructed by defendant below, and that because of the destruction by fire of the tipple and applianees without the fault of the coal company, it was no longer under obligations to carry out the agreement and mine the coal; that the parties when they made the contract had this situation in view, and that by reason thereof this implied condition arises, and that the performance of the contract on the part of the coal company, while not impossible, this implied condition relieves it from liability.

The substance of this answer is that it would be unprofitable •for the coal company to reconstruct the tipple and appliances destroyed by fire to remove the small amount of coal still remaining in the land of the plaintiff below.

There are numerous authorities holding that where the subject-matter of the contract is destroyed without fault of the parties so that the contract is impossible of performance, there is an implied condition that the parties are relieved from carrying out the contract. The earliest case that we have found where the question is discussed is perhaps Paradine v. Jane, 1 Alleyn Reports, 26, and also reported in 82 English Reports Reprint, page 897, a very early English case, but the rule stated is reaffirmed in the ease of Atkinson v. Ritchie, 10 East, 533, reported in Vol. 133, English Reports Reprint, 877, and the rule as stated by Lord Bllenborough is as follows:

“When a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. ’ ’

That rule is followed in numerous English cases, among others, Sheffield Water Works Company v. Carter, 82 B. D., 645, and in this country there are many cases discussing the rule. In Krause v. Board of Trustees, 70 N. E.., 264, the Supreme Court of Indiana review the authorities .at length. That was a case where a contractor agreed to construct an annex to a building and before the completion of his contract the building itself was destroyed by fire caused by lightning, .and the Supreme Court of Indiana held that he was not liable for failure to perform his contract, and they announce this principle in the opinion of the court:

“As to a general convenan t, it is the law that the destruction of the subject matter of the contract, thereby creating a physical or natural impossibility inherent in the nature of the thing to be performed, whether occasioned by vis major or otherwise, will discharge the covenant, provided the event occurred without fault of the covenantor.”

And they cite numerous authorities in support of that principle and .among others, the case of Butterfield v. Byron, 27 N. E., 667 (12 L. R. A., 571; 25 Am. State Rep., 654), and the Supreme Court cites with approval the principle we have quoted above from Paradine v. Jane. Another leading case is Middlesex Water Company v. Knappman Whiting Company, 81 Am. State Rep., 467, decided by the Supreme' Court of New Jersey, and quoting from the syllabus:

“Where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, and if, by unforeseen accident the performance is prevented, he must pay damages for not doing it, no distinction being made between accidents that could be foreseen when the contract was. entered into, and those that could not have been foreseen.
“The performance of an express contract is excused where the continued existence of something essential to the performance is an implied condition in the contract.”

The learned court in its opinion again refers to the case of Paradine v. Jane, supra, as the “leading case on the subject,” and cite the opinion of the Supreme Court of New Jersey in the ease of Superintendent v. Bennett, 27 New Jersey Laws, 513 (72 Am. Dec., 373), as follows:

“No rule of law is more firmly established by a long chain of decisions than this — that where a party by his own contract, creates .a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; therefore if a lessee covenant to repair a house, though it be burned by lightning or thrown down by enemies, yet he is bound to repair it. * * * No matter bow harsh and apparently unjust in its operation the rule may occasionally be, it can not be denied that it has its foundation in good sense- and inflexible honesty. He that agrees to do an act should do it unless absolutely impossible. He should provide against contingencies in his contract. Where one of two innocent persons must sustain a loss, the law casts it upon him who has agreed to sustain it, or, rather, the law leaves it where the agreement of the parties has put it. The law will not insert, for the benefit of one of the parties, by construction, an exception, which the parties have not, either by design or neglect, inserted in their engagement. ’ ’

The learned judge refers to the opinion in Paradine v. Jane, supra, and says that the rule in this case has been adhered to with great tenacity. See also Bacon v. Cobb, 45 Ill., 47. The case of Dermott v. Jones, 2 Wall., 1, is also cited. In the opinion in that case Mr. Justice Swayne says:

“It is a well settled rule of law, that if a party by his contract charge himself with an obligation possible to be performed, he must make it good unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.”

To the general rule, it is stated, there are three exceptions, as follows:

'1. Where the subsequent impossibility is imposed by law.
2. Where the continued existence of something essential to the performance is an implied condition of the contract.
3. In contracts for personal services, in which there is generally the implied condition that the person who is to render the service is alive and not incapacitated by illness.

The only exception that could possibly apply here is probably the second, as to where the continued existence of something essential is an implied condition to the contract. It is stated that that is illustrated in the ease of Taylor v. Caldwell, 3 Best & S., 826 (6 Eng. R. C., 603). The defendant in that case agreed to let certain gardens and a music hall to the plaintiffs for four specified days to come for the purpose of giving a series of concerts. After the agreement was entered into and before the day arrived for the first concert, the music hall was accidentally destroyed by fire. It was held that as the existence of the hall w,as necessary for the performance of the contract, the defendants were excused from liability in respect to its performance, and that no action would lie against them.

We think there is a clear distinction between that class of cases and the one at bar. The coal mine itself was not destroyed. The only destruction was of the tipple and appliances by which the co,al had therefore been mined, which rendered the further mining of the coal much more expensive. Dexter v. Norton, 47 N. Y., 62 (7 Am. Rep., 415), cited by counsel for plaintiff in error in this case is referred to in the learned opinion as to the third class of exceptions above referred to, but it was held in a subsequent case in the same court in an opinion delivered by the same judge that under contract within a specified time, the destruction by fire of the plaintiff’s rolling mill, which prevented the defendant from completing its contract by the time fixed in the agreement, did not excuse even though the accident prevented the performance. Booth, v. Rolling Mill Co., 60 N. Y., 487.

We find no ease that we think conflicts with the principle announced by the authorities cited, but we think whatever may be the law elsewhere, it has been settled by our own Supreme Court against the contention of the plaintiff in error. In the case of Board of Education v. Townsend, 63 Ohio St., 514, it is stated in the syllabus:

“Inevitable accident will not excuse the performance of a contract where its essential purposes are still capable of substantial accomplishment, though literal performance has become physically impossible.
“When a party has one or the other of two modes of per-performing a contract, and one of them becomes impossible by the act of God, he is bound to perform it in the other mode. ”

It does not appear in this case in the pleadings that literal performance of the contract was impossible. The only claim on the part of the plaintiff in error is that it would 'be very expensive, and that the coal remaining in these lands could not be mined with profit in view of the expense of reconstructing the tipple. We know of no authority, and none has been cited to us, that relieves a party from the obligations of a contract because of an inevitable accident which makes the performance of a contract unprofitable. If such a rule were to be adopted where would it end? The coal company in this case had a tipple on adjoining lands in such proximity to the coal of the plaintiff below that it could profitably mine the coal and pay a greater royalty than it otherwise could have profitably paid. Now, its appliances have been destroyed without its fault and the continued mining of Thompson’s coal has been rendered uprofitable May it thereby be relieved from the obligations of its contract? Is there an implied condition in all contracts that the things existing at the time the contract is made, and that the means by which the contract is to be performed shall continue until the performance of the contract? A homely illustration might be suggested that a party had agreed to haul this coal to market; that he had for that purpose a team of horses and a wagon, and, that before the complete performance of the contract without his fault these means are destroyed, and to get another team and wagon for the purpose of hauling the balance of the coal to market would make it unprofitable. Is he still liable on the contract? We think all the authorities say that the liability still exists. Coal Co. v. Coal Co., 86 Ohio St., 140, is a much stronger case for relief from liability than the one made by the plaintiff in error, but the Supreme Court in an exhaustive opinion holds that the lessee is not relieved from liability under the contract of lease.

We have examined all the authorities cited by plaintiff in error and have found none that we think conflict with the rules we have here announced. It follows that the judgment of the court of common pleas will be affirmed.


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    FALSE STATEMENTS IN APPLICATIONS FOR. FRATERNAL INSURANCE.
    Court of Appeals for Cuyahoga County.
    Sovereign Camp of the Woodmen of the World v. Bridget Gallagher.
    Decided, June 14, 1913.

      Fraternal Insurance — False Designation of a Dependent as Beneficiary —Benders Policy "Wholly Invalid — No Recovery May "be Had Thereon "by Blood Relatives.

    Where the provisions of the constitution of a fraternal beneficiary organization are by force of statutory law imported into and become an integral part of contracts of insurance issued in accordance therewith, and one of these provisions makes of no effect a certificate of insurance based upon an application which contains a false statement, the naming by the insured as his beneficiary of one falsely designated as a dependent renders the policy wholly void and of no effect ab initio; and an action by the mother of the insured, brought after his death on a policy so issued, can not be maintained, and all sums paid by the insured in procuring and maintaining such insurance are forfeited and lapse into the fund provided for such contingencies by the laws of the order.

      White, Johnson & Cannon, for plaintiff in error.

      E. P. Strong and Carl P. Schuler, contra.
    Grant, J.; Winch, J., and Meals, J, concur.
    Error to the court of common pleas.
   The prayer of the petition in error in this cause is for a reversal of the judgment of the court of common pleas of this county in favor of the defendant in error, plaintiff below.

Although as to position the parties here are in the reverse order of that held by them in the trial court, we shall hereafter, for the sake of clearness, designate them as they were there in this respect.

For substance, the allegations of error in the petition are included in the first, namely, that no evidence should have gone 4o the jury at all, and that upon the pleadings and admitted facts there should have been no recovery by the plaintiff.

Those facts, so far as they are material here, are as follows:

The defendant is a fraternal beneficiary organization, incorporated under the laws of Nebraska. It has no capital stock, and its activities are exerted wholly for the mutual benefit of its members and their families. It is a corporation not for profit, and it has a lodge system; it proceeds under certain ritualistic forms and its mode of government is- representative. It has a fund out of which benefits may be paid to the beneficiaries of such of its deceased members as have complied with the conditions imposed by its constitution, rules regulations and laws.

In evidence of the right to participate in the benefits mentioned, the organization issues certificates entitling those beneficiaries who come within their provisions to recover their proper amounts. The application for the benefit insurance in each case, and alsoi the constitution and'laws of the order, become and are a part of the contract evidenced by the certificate.

The following parts of the constitution and laws referred to are essential to an understanding of this case:

“Section 3. The objects of the order shall be to combine white male persons of sound bodily health, exemplary habits and good moral character, between the ages of eighteen and fifty-two years, into a secret, fraternal, beneficiary and benevolent order; provide funds Eor their relief; comfort the sick and ■cheer the unfortunate by attentive ministrations in time of sorrow and distress; promote fraternal love and unity, create a fund from which, on reasonable and satisfactory proof of death of a beneficiary member, who has complied with all the requirements of the order, there shall be paid a sum not to exceed three thousand dollars ($3,000) to the person or persons named in Ms certificate as beneficiary or beneficiaries, which■ beneficiary or beneficiaries shall be his' wife, children, adopted children, parents brothers, sisters or other blood relations, or to persons dependent upon the member.
“The name or names of the beneficiary or beneficiaries shall be written in every beneficiary certificate issued. In case such benefits are payable to one of the relations named herein, who shall, at the time of the death of a member, be also deceased and new designation has been made as hereinafter provided during life, the benefits shall be due and payable to the member’s next living relation in .the order named in this section; if there be no such relative surviving, then said benefits shall.be forfeited to and remain in the beneficiary fund.”

Section 60 of the Constitution provides:

“Section 60. 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 prescribed form. * * *
“Fourth. * * * If any of the statements or declarations in the application for membership and upon the faith of which this certificate was issued, shall be found in ,any respect untrue, this certificate shall be null and void and of no effect, and all moneys which shall have been paid and all rights and benefits which have accrued on account of this certificate shall be absolutely forfeited without notice or service.”

Section 66 of the constitution provides among other things:

“If the statements or declarations in his application for membership shall be in any respect untrue, his certificate shall be null and void and of no effect, and all money which shall have been paid, and all rights and benefits which may have accrued on account of his certificate shall be absolutely forfeited without notice or service.”

Section 69 provides:

“No officer, employee, or agent of the sovereign camp, or of any camp, has the power, right or authority to waive any of the conditions upon which 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 the conditions stated in and subject to the constitution and laws, then in force or thereafter enacted.”

The certificate sued upon in this action was issued to Patriot F. McGinty. The named beneficiary in it urns James F. Gaul. The relationship of the latter to the insurance sought to be affected is stated in McGinty’s application, as follows:

“I hereby direct that the amount of the beneficiary fund, to which my beneficiaries may be entitled at my death, shall be paid to James F. Gaul, related to me as dependent. If said beneficiary should not survive me, same shall be paid to my nearest surviving relative in the order named in the constitution and laws of the order. ’ ’

The application also contained the following language:

“I hereby consent and agree that this application, consisting of two pages, to each, of which I have attached my signature, the examining physician’s report and all the provisions of the constitution and laws of the order, now in force or that may hereafter be adopted, shall constitute the basis for and form a part of any beneficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not.
“I hereby waive the attaching of copies thereof to said certificate; and I further waive the provisions of all statutory laws and court decisions in relation thereto. # * I hereby certify, agree and warrant that all the statements, representations and answers made by me 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 any untrue statements or answers made by me in this application * * * intentional or otherwise # * * or if I fail to comply with the laws, rules and usuages of the order, now in force or hereafter adopted, my beneficiary certificate shall become void and all rights of any person or persons thereunder, shall be forfeited. ’ ’

This application is signed by MeGinty at the foot of each page.

The certificate issued on this application states:

“This certificate is isued and accepted subject to all of 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 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.”

To this certificate is attached this statement:

‘ ‘ I read the above certificate No. 21056 of the Sovereign Camp of the Woodmen of the World, and the conditions therein, and hereby agree to and accept the same as a member of Camp No. 42, state of Ohio, this 22d day of October, 1906, and warrant that I am in good health at this time and that all the requirements of Section 58 of the constitution and laws of the order have been complied with.”

This is signed by Mr. MeGinty, and witnessed by the Clerk of the Camp. On the back of this certificate is the following:

‘ ‘ Conditions Refereed to and Made a Part of this Certificate.
“1st. This certificate is issued in consideration of the representations, agreements and warranties made by the person named herein, in his application to become a member; * * *
1 ‘ The foregoing provisions are hereby made a part of the consideration for and are conditions precedent to the payment, of benefits under this certificate. * * *
“If any of the statements or declarations in the application for membership and upon the faith of which this certificate was issued, shall be found in any respect untrue, this certificate shall be null and void and of no effect, and all moneys which shall have been paid, and all rights and benefits which have occrued on account of this certificate shall be absolutely forfeited without notice or service.”

Gaul, the person named in the application and also in the certificate issued upon it, was not a dependent and the statement to that effect was false. The plaintiff, Bridget Gallagher, is, literally, a stranger-in-law to the contract she sues on — -her name appearing nowhere in it, either as a party to it or as a designated person to share in its benefits.

The claim of the plaintiff is that notwithstanding this, she being the mother of MeGinty may recover upon the certificate, MeGinty being now dead.

On the contrary, the defendant contends that the false statement avoids the obligations of the certificate, defeats all right of recovery upon it, and causes the amount that would otherwise be coming to a proper beneficiary, and all sums paid in procuring and maintaining the insurance, to be forfeited and to lapse into the fund provided for such contingencies by the laws of the order.

The foregoing facts and the statement of the issue between the parties are not disputed.

Over the objection of the defendant, testimony w.as permitted to be introduced and the case was submitted to the jury by the trial court. A verdict for the plaintiff was had for the full amount of the benefit named in the certificate, with interest, and a motion for a new trial being overruled,judgment was entered accordingly.

The same issue that was before the court below is before us. If the contention of the defendant was right, there was no case to go to the jury and it should not have been submitted to the jury at all. .

With some reluctance, but in the fulfilment of our duty, we have concluded that the law of Ohio has been sufficiently declared to settle this question and that it does settle it, and that we. may not in this case depart from the somewhat narrow and rigid path marked out for us.

This conclusion renders it unnecessary for us to examine the formidable array of authorities, so industriously marshalled from other states in the briefs, and so ably discussed at the bar.

The General Code of Ohio, Section 9467, provides:

"The payment of death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal .'adoption, affianced husband or affianced wife, or to a person or persons dependent on the member.”

Section 9469 says:

"Every certificate issued by the association * * * shall provide that the certificate, the charter or articles of association, the Constitution and laws of the association, and the application for membership, medical examination signed by the applicant, shall constitute the contract between the association and the member.”

We are not, therefore, left in any doubt as to the fact that the application and those portions of the constitution which we have quoted, are by force of positive law imported into, .and have become integral parts of the contract of insurance evidenced by the certificate sued on, to be construed and applied and given binding force, whenever they are applicable, as in other contracts, unless their application is limited or modified by some other and controlling countervailing enactment. German Fire Ins. Co. v. Schill, 69 O. S., 136, 139; West et al v. Ins. Co., 27 O. S., 1; Traveler’s Ins. Co. v. Myers, 62 O. S., 529.

It is to be remembered that this is not a. case in which the order admits its obligation to pay the benefit to some one, and is- a mere stakeholder or interpleader. Nor .again, is it a case where the certificate contains no self-executing provision for forfeiture, following upon a false statement, nor where the statement amounts to no more than .a direction or representation, not declared by the contract itself to be a warranty. Nor yet is it a ease where a valid designation, and therefore a valid contract, was made in the first-place with a change later to an invalid designation. And it is not a case where the constitution and laws of the order do not become a part of the contract, either by force of the contract itself, or by the compulsion of a statute.

It is a ease of ordinary contractual origin and relations, in which the language of the contract is plain, clear and unambiguous, and not open to enlargement or diminution by construction, unless it is to be aided by some coercive consideration to which we have not so far in this discussion referred. That language, at the crucial point of contact, is this:

"I hereby certify, agree and warrant that all the statements, representations and answers made by me in this application, * * * are full, complete and true * * * and I agree that if any untrue statements or answers are made by me in this application, * * # my beneficiary certificate shall become void and all rights of any person or persons thereunder, shall be forfeited.”

By Sections 60 and 66 of the constitution of the order — they being by agreement and by statute a part of the contract sued on here — a forfeiture in case of an untrue answer, is denounced in terms equally explicit.

By Section 3, also above quoted, in ease of a failed designation, with no substituted allowable designation — and it would follow, we are bound to suppose, also upon an impossible designation — the declaration of a forfeiture is just as emphatic, with an added provision for the lapsing of benefits s.o forfeited into the general beneficiary fund of the order.

Prior to the enactment in Ohio of a statute presently to be mentioned, the law of the state in regard to how this question of the construction of statements in applications for insurance, in eases where the parties have by their contract agreed that they are to be deemed warranties, was, we think tolerably well settled. Its conclusion was that it would leave the parties where they had left themselves.

Without canvassing the decisions of our Supreme Court in this respect along the lines of development, it will be enough for present purposes to call attention to the case of Insurance Co. v. Pyle, 44 O. S., 19. In that case the question to be determined arose upon a paragraph in the application for a policy of life insurance, which was in these words:

“It is hereby declared and warranted that the above are fair and true answers to the foregoing questions; and it is acknowledged and agreed by the undersigned that this application shall form a part of the contract of insurance, and that if there be, in any of the answers herein made, any untrue or evasive statements, or any misrepresentations, or concealments of facts, then any policy granted upon this application shall be null and void; and all payments made thereon shall be forfeited to the company.”

tt

The court, when it came to deal with the case put the issue in this clear language: “Did the policy ever attach, or was it ever valid?”

It was admitted in the opinion that the avoidance of the policy was-sought on the ground of “untrue statements, innocently made” by the applicant.

The question thus propounded by itself to itself, the court answered as follows:

“In this case the (trial) court did not err in holding that the policy 'is wholly void and of no effect whatever, and was so from the moment it was issued. ’ ’ ’

In its opinion in the case the court quotes with approval the following language from Jeffries v. Life Ins. Co., 22 Wall., 47:

“Any answer untrue in fact, and known by the applicant for insurance to be so, avoids the policy, irrespective of the question of the materiality of the answer given to the risk. * # *
“Nothing can be more simple. If he makes any statement in the application, it must be true. If he makes any declaration in the application, it must be true. A faithful performance of this agreement is made a express condition to the existence of a liability on the part of the company.”

And the following also, from Aetna Life Ins. Co. v. France, 91 U. S., 510:

“The company was not liable if the statements made by the insured were not true. The agreement of the parties that the statements were absolutely true, and that their falsity in any respect should avoid the policy, removes the question of their materiality from the consideration of the court or jury. ’ ’

And this, from The Co-Operative Life Assn. v. LeFlore, 53 Miss., 1:

“A contract of insurance, like other contract, is avoided by an untrue statement by either party as to a matter vital to the agreement, though there be no intentional fraud in the misrepresentation.”

And again, the following from Foot v. Aetna Life Ins. Co., 61 N. Y., 571:

“If a policy of insurance declare that the statements made in the application shall be part and parcel of the policy, such statements become warranties and must be true, whether material or not.”

And this also, from Clark v. Manufacturer’s Ins. Co., 2 Wood & M., 472:

“A warranty is generally a stipulation made and described in the policy itself, and must be complied with, whether material or not. * * * Where a material fact is suppressed in such representations, the insurance is avoided, and the policy does not attach, whether the suppression happens by neglect or fraud.”

And at last the court, after its approval of these and other authorities of like import, sums up and fixes the law of the case, in the syllabus, thus:

‘ ‘ 1. The provisions of life insurance policy are construed and applied like the terms of any other contract, and such provisions may render the policy void, ab initio, by the terms of the same and the failure of warranty.
“2. When a life policy is issued and accepted upon the expressed condition that the answers and statements of the application are warranted true in all respects, and that if the policy be obtained by any untrue answer or statement, or by any fraud, misrepresentation or concealment, ‘the policy shall be absolutely full and void ’; and as to matters material to the risk some of the answers and statements are untrue in fact, though made without actual fraud and under an innocent misapprehension of the purport of the questions and answers, no contract of insurance is thereby made, and the policy does not attach, but it is void, ab initio.”

In the case at bar we conceive the untrue statement to be material. It consisted in the applicant undertaking to create by it the relation of dependent, a relation which if established would confer the right of recovery under the certificate on the named beneficiary, but if false no such right would accrue.. The truth or falsity of the statement, therefore, went to the heart of the transaction. The life of the benefit depended wholly upon its truth. But for it, and the assumption that it was true and not false, the certificate would not have been issued, and if it was false, the transaction, by the agreed terms of the contract, had no vitality.

If then the materialty of the statement is necessary to bring this case within the letter of the syllabus in Insurance Go. v. Pyle, supra, in our estimation the necessity is met, and there is no need of falling bade to the cases cited, and apparently approved in that case, where these say that under a contract like the one we have in hand, the materiality of the untrue statement is of no moment.

Such we conceive to be the law of Ohio in a case unaided and unaffected by any modifying statute. The application of the rule in its full rigor, however, in many insurance eases necessarily resulted in hardships in some instances — hardships often, no doubt, unmerited. The law is no respecter of persons — not even of worthy and unfortunate persons, and in its dealings with them is sometimes pitiless.

Accordingly, and without doubt feeling the force of this consideration in its bearing on the helpless, the widow and the stricken, the Legislature passed an act which is now embodied In Section 9391 of the General Code, and which reads thus:

“No answer to any interrogatory made by an applicant, in his or her application for a policy, shall bar the right to recover upon any policy issued thereon, or be used in evidence in any trial to recover upon such policy, unless it be clearly proved that such answer is wilfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, also that the agent or company had no knowledge of the falsity or fraud of such answer.”

Passed, as it must have been, to relieve against the hardness in many eases of the principle announced in Pyle v. Ins. Co., supra, it is not to be doubted that if this statute can be applied in the case at bar, it will perhaps operate so as to give the plaintiff a considerable chance of success before a jury, for in that contingency the case would, we suppose, properly go before a jury for a verdict.

Can it be so applied? We think not.

For reasons which, doubtless, seemed to itself to be sufficient, and on grounds of salutary public policy, no doubt, the Legislature has seen fit to enact another statute, which is as follows:

“Section 9465. Except as herein provided, such societies (including, clearly, the defendant) shall be governed by this act, and shall be exempt from the provisions of the insurance laws of this state, not only in governmental relations with the state, but for every other purpose, and no law hereafter enacted shall apply to them, unless they be expressly designated therein. ’ ’

In no such subsequently enacted law is the defendant order expressly or by implication designated, it is believed, and the claimant here is left exposed to all the harshness of the rule in Insurance Co. v. Pyle, pushed to its necessary conclusion in this ease.

We can not, as none of the cases from other states than Ohio, cited in the argument, do, regard the untrue answer given as a mere direction, or otherwise than as of the substance of the transaction, even if the parties had not by the express terms of their contract made it substantial, beyond the power of the courts, as we think, to make it otherwise.

Under the law of Ohio, as we tire constrained to find it, we must hold that by reason of tlie untrue answer as to the relation of dependence of the assured to the beneficiary the certificate sued on never attached but was void from the beginning.

It follows that the issue in the case should not have been submitted to the jury at all, and that the court below erred in so submitting it and in the various steps consequent upon such erroneous submission.

The judgment of the court of common pleas is therefore reversed, and judgment against the defendant in error for the costs in this behalf made is allowed — that being the judgment which the court below should have rendered.


text:
    DEATH AT A STREET AND RAILWAY CROSSING.
    Court of Appeals for Hamilton County.
    John T. Grunkemeyer, Administrator, v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.
    Decided, March 21, 1914.

      Negligence — Decedent Found Dead at Railway Grossing — No "Witness of the Accident — Presumption as to LooJcing and Listening — Probable Manner of Death.

    The fact that no one saw the decedent struck by a locomotive at the street crossing, or observed the manner of her death, does not afford ground for taking the case against the railway company from the jury, where the circumstances make probable the fact that she was struck by the locomotive which passed at about the time she would have reached the crossing, and the presumption of law is that she stopped, looked and listened before attempting to cross the track.

      Littleford, James, Ballard & Frost, for plaintiff in error.

      Maxwell & Ramsey, contra.

      Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   This action was brought to recover damages for the alleged negligent killing of plaintiff’s intestate, Frances Grunkemeyer. At the close of the testimony of plaintiff below the court directed a verdict for the defendant because “the court is of the opinion that no person knows how this unfortunate accident occurred; that there will be nothing left for the jury to do but to guess how this unfortunate girl was killed, and' the court can not permit the jury to do that, and therefore directs you to return a verdict for the defendant.”

The testimony in the case tended to show that the decedent with her uncle, John Scherrer, at 8:10 p. m., left her home1 on Gladstone avenue five doors west of Harrell street where it crosses the double tracks of defendant company’s steam railway, which are upon Gladstone avenue, the north track being for west bound traffic and the south track for the east bound traffic; that defendant’s engine No. 8964 backed, tender forward, across Harrell street at about 8:11 p. m., going on the south track; that at or about the same time a freight train crossed Harrell street on the west bound track, and that other trains crossed Harrell street on the west bound track at 8:12, 8:17, 8:25 and 8:46 respectively; that a Norfolk & Western train crossed on the east bound track at 8:54 p. m.

Plaintiff claims that his intestate was killed by defendant’s engine No. 8964. Her body was found along the south side of the east bound track, several feet east of Harrell street. It was first seen by a boy, about 8:30 p. m.; and the remains of Scherrer were found badly mutilated on.the track eastward from Harrell street at a distance of about 150 feet. This body was not found, nor was the girl’s body identified as such until after 9-o’clock. The man’s body was badly mangled, as though it had been passed over by a train of cars, .and the girl’s body showed a wound on the head. The evidence is sufficient to reasonably sustain an inference that both were killed by engine No. 8964. They would naturally have passed along the north side of Gladstone street to Harrell street'and south on Harrell street across the railroad tracks on their way to Eastern avenue, as the ordinary means of leaving the Grunkemeyer home, and they would have reached the crossing at just about the time this engine passed.

The position of the bodies shows a strong probability that they were struck on the south track rather than the north track, and they must have been struck by engine No. 8964 because it was the only train on the south track between the time they left their home and the time the girl’s body was first seen, which was before the Norfolk & Western train had passed along the south track.

An additional circumstance that is convincing upon this subject is that a fragment of flesh was found by the men at the roundhouse on engine No. 8964, on the brace on the inside of the cow-catcher where it would naturally have lodged, when we consider that the engine was going backward.

Counsel for defendant have argued that the deceased may have been-struck by one of the trains on the west bound track rather than by the train on the south track, and that they might possibly have been struck by the west bound freight and hurled .against the east bound locomotive on the other track. The position and condition of the bodies will show that this theory is improbable. If they had been struck by a west bound train the bodies would naturally have been carried west of the crossing instead of as they were, east of the crossing, and the girl’s body would have, been either between or upon the tracks and more mutilated.

We recognize the rule' urged by the defendant, that where one or two or more things may have induced an accident, for one of which the defendant is responsible and for the other of which he is not, it is not permissible to speculate between the several causes and to find that defendant’s negligence was the real cause, in the absence of satisfactory foundation in the evidence for that conclusion (Patton v. Tex. & Pac. Ry. Co., 179 U. S., 658; Smith v. Ry. Co., 200 Fed. Rep., g53; Ry. Co. v. Marsh, 63 O. S., 236). But the evidence as already discussed convinces the court that this case is not within that rule.

There is evidence tending to show that the railroad company was negligent in the operation of this engine. It was running backwards without a lookout and with no headlight in front, and nothing bnt an ordinary white lamp hanging on the tender. There is testimony from witnesses in the neighborhood that they heard no bell or signal when it crossed EDarrell street. The evidence reasonably tended to show that it was running at a speed greater than the ordinance limit of ten miles per hour, showing that it ran a distance of two and a half miles, which included the crossing in.question, at an average speed of from twenty-two to thirty miles per hour — although there was no testimony to show that it did not slow up at this crossing.

Contributory negligence was pleaded by the defendant in its answer, but there is no testimony to show it as a matter of law.

“Tn the absence of evidence to the contrary there is a presumption that one who was killed while crossing a railroad track at night, stopped, looked and listened before attempting to cross the track.” R. R. Co. v. Landrigan, 191 U. S., 461.
“Tn an action for negligent death, decedent is presumed to have used reasonable care for his own safety, in the absence of evidence to the contrary.” Rothe v. Penn. Co., 195 Fed. Rep., 21.

The fact that the frieght train on the north track went west at practically the same time that this engine went' east on the south track undoubtedly confused plaintiff’s intestate and her companion in such a way as to .account for the accident.

The rule, to he observed hv the trial court, upon a motion for a directed verdict, has been so well stated by Ranney, J., in the opinion of the court, at pages 646 and 647 in the case of Ellis & Morton v. Ohio Life Ins. Co., 4 O. S., 628, that we quote the following words of the opinion:

“When all the evidence offered by the plaintiff has_ been given, .and a motion for a non-suit is interposed, a question of law is presented, whether the evidence before the jury tends to prove all the facts involved in the right of action and put in issue hv the pleadings. In deciding this question, no finding of facts by the. court is required, and no weighing of the evidence is permitted. All that the evidence in any degree tends to prove, must he received as fully proved; every fact that the evidence and reasonable inferences from it, conduces to establish, must be taken as fully established.
‘ ‘ The motion involves not only an admission of °the truth of the evidence, but the existence of all the facts which the evidence conduces to prove. It thus concedes to the plaintiff everything that the jury could possibly find in his favor, and leaves nothing but the question whether, as a matter of law, each fact indispensable to the right of .action has been supported by some evidence? If it has, no matter how slight it may have been, the motion must be denied; because it is the right of the party to have the weight and sufficiency of his evidence passed upon by the jury — a right of which he can not be deprived, and involving an exercise of power for which without his consent, the court is incompetent. But where he has given no evidence to establish a fact, without which the law does not permit a recovery, he has nothing to submit to the jury; and the determination of the court, that the fact constitutes an essential element in the right of action, necessarily ends the case. ’ ’

This mile has been repeatedly stated by the Supreme Court, in many cases, among which we cite: Stockstill v. D. & M. R. R. Co.. 24 O. S., 83; Snell v. Ry., 54 O. S., 197; Dick v. R. R. Co., 38 O. S., 389; Gibbs v. Village of Girard, 88 O. S., 34.

The case, therefore, should have been submitted to the jury on the evidence, under proper instructions by the court, and the court, erred in granting defendant’s motion for an instructed verdict.

Judgment reversed, and cause remanded for a new trial.