author: Burket, J. Williams, J.,

text:
    The Cleveland, Terminal and Valley Railroad Company v. Marsh.

      Competency of testimony — Qualification of witness — May use; knowledge at time of testifying• — Volunteer assisting servant of corporation, entitled to protection, when — Proof required to establish negligence.

    1. It is error to allow a witness to testify, over the objection of the other side, as to the identity of a person, without first qualifying himself by showing that he has some knowledge on the subject.

      2'. A witness should testify in accordance with the knowledge he has at the time of testifying, and is not confined to the-knowledge he may have had at a previous time.
    3. One who is invited by a servant of a corporation in charge of1 its work or service to assist him therein, and does so with, some purpose or benefit to be subserved in his own behalf’ in addition to the purpose of so assisting, is not a volunteer, and is entitled while so assisting, to be protected, against the negligence of the servants of the company.
    4. While a railroad company owes a duty to the public to keep-its tracks free from unnecessary danger along where the-public are allowed to use such tracks as a way for travel, one who is not using such tracks as such way, can not be-heard to complain of the breach of such duty, and in case of injury to him, can not bring the breach of such duty to his aid in attempting to recover for an injury caused by reason of some other alleged negligence of the company.
    5. To establish negligence, there should be either direct proof’ of the facts constituting such negligence, or proof of facts from which negligence may be reasonably presumed.. There should be no guessing by either court or jury.
    (Decided October 16, 1900.)
    Error to the circuit court of Summit county.
    The action in the court of common pleas was for the recovery of damages for a personal injury suffered by Raymond G. Marsh, then of the age of ten years, by reason of the explosion of a signal torpedo on the track of the railroad of the plaintiff in error. The injury occurred at the village of Myersville, and at that place the railroad runs north and south, and the main street of the village running east and west ■crosses the railroad, the station and water tank being on the south side of the street, and a switch stand about forty rods north of the street, and another about a quarter of a mile south of the street. The railroad company had employed Milo Swinehart as station agent, and it was his duty to light and place upon the switch stands each evening certain lights supplied by the company for the purpose, and to bring the lanterns in each morning and clean and fill them so as to have them ready for use the next evening. The station agent without authority, and without the knowledge of the company, employed the Marsh hoy to attend to the lamps, and when on his way to the north switch stand with the light on the evening of April 18, 1896, he found a signal torpedo by the side of one of the rails at a point about twenty rods north of the street, and not knowing its dangerous character he put down his lamp, and exploded the torpedo by pounding it with a stone, and the explosion seriously injured him. The petition averred, and the evidence introduced tended to prove, that people, including children, were generally for ye?rs accustomed to pass along and upon the railroad where the injury occurred, without hindrance and with the full knowledge of the railroad company.
    On the day of the accident at the hour of 12:33 noon, a local freight train arrived at Myersville station from the north, and ran upon the switch north of the public highway, entering the same at the north end, and there remained until a passenger train, also from the north, which arrived at 12:47 P. M., had passed, and a passenger train from the south, which arrived at 1:01 P. M., had also passed; at 1:03 P. M. it pulled out onto the main track from the south end of the switch, which was about one-fourth of a mile-south of the highway, and departed south.
    Upon the trial there was evidence admitted over-the objection of the defendant below, which tended, to prove that one of the crew of the freight train obtained a signal torpedo from the station agent, while the train was on the side track that day, and then proceeded toward the north end of his train. As to who placed the torpedo upon the railroad track,, or how it came to be there, there was no evidence except the above as to one of the train crew having-that day obtained such torpedo from the station agent.
    At the close of plaintiff’s evidence, counsel for-the railroad company moved the court to rule out all the evidence relating to the travel of people generally upon and along the railroad track north of the highway, which motion was overruled and exceptions, taken.
    There were also proper exceptions saved to the introduction of certain testimony, and to the refusal of the court to charge as requested, and to the charge-as given, which fully appear in the opinion.
    There was a verdict and judgment for the plaintiff below, which was affirmed by the circuit court, and now the railroad company comes here seeking-to reverse the judgments of the lower courts.

      J. P. Bradbury and Allen & Cobbs, for plaintiff in error,
    cited the following cases: Flower v. Pernn, R. R. Co., 69, Pa. St., 210; Rolling Mill v. Corrigan, 46 Ohio St., 283; Wood’s Master and Servant, Sec. 455;
      Osborne v. Railroad Co., 68 Me., 49; Church v. Railroad Co., 50 Minn., 218; Mayton v. Railroad Co., 63 Texas, 77; Barstow v. Railroad Co., 143 Mass., 535; Wisham v. Rickards, 136 Pa. St., 109; Cooper v. Railroad Co., 36 N. E. Rep., 272; Railway Co. v. Bingham,. 29 Ohio St., 369; Lane v. Atlantic Works, 111 Mass., 136.

      Tibbals & Franks, for defendant in error,
    cited the following cases: Railway Co. v. Shields, 47 Ohio St., 387; Osborne v. Railway Co., 68 Me., 49; Barstow v. Railway Co., 143 Mass., 535; Evarts v. Railway Co., 57 N. W. Rep., 459.
   Burket, J.

The first question arises as to the introduction of part of the evidence by Dr. Bauer. He testified that on the day of the accident he was in the station when the freight train from the north pulled in upon the side track, and that “While in there one of the train crew, I took it to be, came in and held a conversation -.” Objection being made, counsel for plaintiff said: “Describe this man that came in.” Counsel for defendant, still objecting, said: “ He may describe the man.” The witness answered: “He was a stranger to me, but he was a trainman, one of the train crew.” The court was asked to exclude and rule out this testimony, but refused to do so, to which there Avas an exception saved. This testimony was. not competent. When a party offers evidence he must first qualify his witness to speak as to the subject matter. Here the witness failed to show that he was qualified to say whether the man was one of the crew or not. And objection being made by counsel for the defendant, it was incumbent upon the plaintiff to show that the witness had some means of knowledge upon the subject, and was not just merely guessing at it.

The same witness also testified that this trainman ■obtained an object from the station agent, and that the trainman and the station agent had some conversation about it, and the station agent said, “Here is one, I have got one,” and handed it to the trainman. That the object was a metallic box about three inches long, two and a half inches wide and three-fourths of an inch thick, with rounded ends. That at the time he did not know what it was, but that he knew at the time of testifying that it was a signal torpedo. To all of this testimony there was objection and proper exceptions saved. As the witness had not qualified as to whether the man who came into the station was a trainman or not the evidence as to the conversation was incompetent.

If the witness did not know on that day what the ■object so delivered by the station agent was, but by knowledge subsequently obtained knew at the time he testified that it was a signal torpedo, it was competent for him to testify to the fact as he knew it to be at the time of testifying. Runyan v. Price et al., 15 Ohio St., 1. A witness may see a stranger and not know who he is, but by knowledge subsequently •obtained, as by acquaintance and association with him he may be able years afterwards to testify positively who the stranger was. A witness should testify as his knowledge is at the time of testifying, and not as his ignorance was at a previous time.

Upon the trial counsel for the railroad company requested the court to charge as follows: except to place the north switch light in position, pursuant to the request of the station agent, Swinehart, then I say to you that the fact that the railroad company had permitted the public to travel over this part of its property without objection, would not entitle the plaintiff to receive, at the time of his injury, that degree of protection from injury which such public would have been entitled to receive, nor that degree of protection he would have been entitled to receive, had he been upon the property as one of the public.”

“If you find that at the time the plaintiff, Raymond Gilbert Marsh, received his injury he was on the property of the railroad company for no purpose

This request was refused, and the court charged the jury upon the same subject as follows:

“And I say to you further upon this point that it is negligence for the servants of such railroad company, wantonly and needlessly and without notice, warning or other precaution, to place and leave exposed to observation, at such point or place on its railroad where the public, including children, are and have been so permitted by the company to travel and pass, an apparently harmless, but in fact highly explosive and dangerous object like a signal torpedo, easily picked up and handled by children and likely to attract them, and known to such servants to be such.
“The question, therefore, gentlemen, comes to this: It is admitted that this boy was injured by the explosion of a signal torpedo on the railroad track. The plaintiff charges that it was placed there and left unexploded, and that at that time and place, and under those circumstances, the track having been commonly used for a long time by the public and by children as a passageway, with the knowledge of the defendant, and with its permission, and that the defendant was guilty of a want of ordinary care in such use of its property, and by placing this torpedo upon its tracks and permitting it to lie there unexploded, whereby the plaintiff was injured. Now, this is the plaintiff’s claim. * * *
“The burden of proof, as I have stated to you, is upon the plaintiff to establish these propositions by a preponderance of the evidence. He must show you that the railroad company permitted its tracks and right of way to be used by the public and by children in the manner that I have already stated to you, and that while he was there upon that track or passing along the same, under the circumstances stated in his petition, that he was injured by the explosion of this torpedo and that the torpedo was placed there and left unexploded by the defendant, its servants or agents.”

Proper exceptions were saved to this charge, and to the refusal of the court to charge as requested. The court erred in refusing to charge as requested, and in the charge as given, and in refusing to rule out the evidence as to the travel of the public, including children, upon and along the railroad, and also in receiving such evidence. The error occurred by regarding the principles of the case of Harriman v. Railway Company, 45 Ohio St., 11, as applicable to the facts of this case. In that case an unexploded signal torpedo was knowingly and recklessly left on the railroad track at a point where the public, including children, had for years been permitted to cross the track, using it as a path of travel, and the torpedo was picked up by a boy at that place while using the path of travel in the usual manner, as one of the public passing and repassing along the same, while in the case at bar the torpedo was not picked up by the boy while passing along and upon the railroad track as one of the public, but while going upon the track in the performance of his engagement with the station agent to light the lamp at the switch stand. His being upon the track at that time was not induced by the fact that the track had been used for years as a line of travel by the public, but by reason of his engagement to light the lamps. His rights and the liabilities of the railroad company would have been the same if the track of the railroad company had never been used as a line of travel, or if the injury had occurred while the boy was going to the switch stand south of the highway where the railroad was not used as a line of travel, so far as appears in this case. The principle is the same as that held in Kelley v. Columbus, 41 Ohio St., 263, 270, where the court say: “If there had been a business room in the building, or upon another part of the lot which would have been an implied invitation to the public to go there, it still would not help the plaintiff when he admits that he did not go upon the lot for any such purpose.”

Counsel for the railroad company also requested the court to give the following charges to the jury which were refused and exceptions taken:

“2. I say to you further that if you find that he was upon that part of the property of the railroad company where he received his injury, at the time he received his injury, only for the purpose of placing the north switch light in position at Swinehart’s request, then his right to be there was no greater than that of a licensee and the company was under no obligation to do more than refrain from inflicting wilful injury upon him
“3. I say to you further that, if you find that plaintiff was at the place where the injury was received for no purpose except to carry out the request of Swine-hart as to the switch light, then and thereby he assumed all risks of injury, short of wilful injury, that might result from the negligence of any servant of the company.
“4. If you find that any member of the train crew of the local freight train which reached Myersville between twelve and one o’clock P. M., on the day of the accident left an unexploded torpedo upon the property of the railroad company, where the plaintiff received his injury, which torpedo was found and exploded by the plaintiff .at that place while there pursuant to the request of Swinehart to place said north switch light in position, and in consequence thereof he received the injuries complained of, then I say to you further that such act of said member of that train crew would not constitute negligence of the company of which the plaintiff could in law complain.
“5. The petition in this case does not aver that the defendant had knowledge of the fact that the plaintiff was lighting and carrying the switch lamps back and forth along the railroad or that the plaintiff was going back and forth along the railroad for any purpose, and unless you can find from the evidence that the injury to the plaintiff was willfully and intentionally caused by the defendant, then your verdict should be for the defendant.”

There was no error in refusing these requests.

The requests are all founded upon the theory that one who, upon request, voluntarily assists the servant of a corporation in the performance of his duties without the knowledge of the officers, the servant having no authority to procure such assistance, is a volunteer, and can recover from the company only for wilful injuries inflicted upon him. Upon the hearing this view was persistently urged by counsel for plaintiff in error, both in their brief and upon oral argument.

Where a person at the request of a servant of a corporation, assists such servant in the performance of his work without any purpose or benefit of his own to be served by such assistance, he is regarded as a mere volunteer, and the requests to charge would be applicable to such a case. But where he has a purpose or benefit of his own to be served by such assistance, in addition to the purpose of assisting the servant, he is regarded as acting in his own behalf, with at least the acquiescence of the company. A trespasser who is upon the company’s premises wrongfully, and a mere volunteer, stand upon substantially the same footing, and are entitled to recover only for such negligence as occurs after the servants of the company discover their perilous situation, that is for wilful or intentional injury. But there is a class between mere volunteers and trespassers and partaking somewhat of the characteristics of each, that is where the person assists the servant at his request, not only for the purpose of assisting in the work of the master, but also for a purpose and benefit of his own. In such cases it cannot be said that he is wrongfully upon the premises, because he is invited by the servant in charge. The master may not have assented, but neither has he dissented, and being there upon the invitation of the servant in charge and there being no dissent of the master, he is regarded as being there by sufferance. And being there by sufferance he is rightfully there for the double purpose-of aiding the servant, and thereby furthering the interests of the master, and of furthering his own private interests in his own behalf and for his own purposes and benefits. In such cases the person so assisting cannot be held to thereby become a servant of the master, because the servant inviting such assistance has no power or authority to employ other servants, and therefore the law of fellow servants is not applicable. As such assistant is not a trespasser, and not a fellow servant, and not a mere volunteer, the law assigns to him without name the position of one, who, being upon the premises of another by the sufferance of such other, performing labor or service for his own purpose and benefit in his own behalf, is entitled of right to be protected against the negligence of the owner of the premises or his servants. The case of Street Railway Co. v. Bolton, 43 Ohio St., 224, was decided upon this principle, although the principle is not very clearly stated in the report of the case. The case of Eason v. S. & E. T. Ry. Co., 65 Texas, 577, belongs to the same class. The court in that case say: “The principle upon which a recovery is allowed is this: The injured person is not a volunteer, but engaged at the request or with the permission of the railway’s agents in a transaction of interest as well to himself or his master as to the railroad company, and this entitles him to the same protection against the negligence of the company’s servants as if he were at the time attending to his own private affairs. Though, performing a service beneficial to both, he is doing so in his own behalf, and not as a servant of the company. The request or acquiescence gives him the right to perform the' service; the fact that he acts in his own behalf, however beneficial his labors may be to the company, gives him the right to be protected against the negligence of the company’s servants.”

There is also a clear explanation of this principle in Church v. C. M. & St. P. Ry. Co., 50 Minn., 218, 221. Many other cases illustrating this principle in its application to different facts are found in the above cases, and in cases cited by counsel in their briefs and which the reporter will carry into the report of this case.

As the boy in this case by his engagement with the station agent was to perform a service in lighting and cleaning the lamps beneficial to the company on the one hand, and to himself on the other, as he was to receive and did receive pay from the agent' for his services, we think that he was on the railroad at the time of the injury by the sufferance of the company, not as a servant of the company, nor as a trespasser, nor as a mere volunteer, but as one performing a service in his own behalf and for his own purpose and benefit and entitled of right to be protected against the negligence of the servants of the company.

One case is cited by counsel for defendant in error, and we know of no other, Rhodes v. Georgia R. R. & Banking Co., 84 Georgia, 320, where it is in effect held that where a child under the age of discretion assists, upon request, the servant of a railroad company in the performance of his duties without any purpose or benefit of his own to be subserved thereby, and therefore a mere volunteer, and is injured by the negligence of such servant while in the act of assisting him, the company is liable to such child in damages. Whether this decision was induced by the statutes of that state does not clearly appear, but it probably was, because in addition to their statutes as to children under the age of discretion referred to in the opinion, section 3033 of their code provides as follows: “A railroad company shall be liable for any damages done to persons, stock, or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonble care and diligence, the presumption in all cases being against the company.” The injury in that case occurred in moving a freight car.

This section is broad enough, to make a railroad company liable to mere volunteers whether adults or infants, and yet it is conceded in the opinion that a mere volunteer cannot recover. The exact ground of the decision is not clearly pointed out, and whether the courts of this state would go to the extreme limit of that case may well be doubted. But we are not required, however, in the case at bar, to go to the extent of the Georgia case, because here the boy had a right to be protected against the negligence of the servants of the company upon the principles hereinbefore stated.

As the company had employed a proper person for station agent, it had the right to rely upon him, and presume that he would perform his duty as to lighting and cleaning the lamps, and it was not bound to anticipate that the station agent would employ a boy of tender years to perform that duty for him; and, therefore, it was not bound to keep its right of way in a safer condition than would have been required in. case the station agent had attended to the lights himself. If, however, the company had knowledge that the boy was actually performing that service, and for that purpose was daily passing over and along, its track, it was bound to anticipate that an unexploded signal torpedo upon its track might be picked up and exploded by him to his injury; and the leaving of such torpedo upon the track, either wrongfully, or negligently by the servants of the company, would be such negligence as would, in case of injury to the boy by reason thereof, sustain an action against the company.

Counsel for defendant in error have cited and strongly urged the cases of Defiance Water Co. v. Olinger, 54 Ohio St., 532, and Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St., 560, but those cases are not applicable to the case at bar. The principle of those cases and Fletcher v. Rylands, 1 Exch. L. R., 265, upon which they are founded is, that if the owner of a dangerous animal or substance allows it to escape, or sends it from his own premises upon the premises of another, he is liable for all proximate damages resulting therefrom. In the Defiance-Water Co. case, water was allowed to escape, and in the Bradford Glycerine Company case, force or concussion was allowed to escape to the premises of another, and it Avas held that proper damages might be recovered. The following cases throw some light upon the rights of the parties where some substance is cast upon the premises of another: C. & H. Coal & Iron Co. v. Tucker, 48 Ohio St., 41; Collins v. Chartiers Valley Gas Co., 131 Pa. St., 143; Letts v. Kessler, 54 Ohio St., 73; Kelley v. Ohio Oil Co., 57 Ohio St., 317.

In -the case at bar nothing was sent or allowed to-escape from the premises of the railroad company, but the injury occurred upon its own premises. The-boy came to the dangerous object, instead of its escaping and going to him. The principles governing' the two conditions are very different.

As signal torpedoes are necessary in the operation of trains on railroads, the possession of them by men of the train crew cannot be regarded as negligence, and it cannot be presumed that they are negligently used, but negligence in such a case as in all others must be proved either by testimony directly establishing the fact, or by the proof of facts from which such negligence will reasonably follow and be presumed. The jury cannot be allowed to guess that there was negligence without some proof thereof, either direct or inferential.

For the errors above pointed out the judgments of the lower courts are reversed, and the cause remanded to the court of common pleas for a new trial.

Juclgments reversed.

Williams, J.,

dissenting. The purport of the instruction requested by the defendant, the refusal to give which is made a ground for reversing the judgments below, is, in its application to the facts of this case, that because the plaintiff, when he received the injury of which he complains, was on the defendant’s railway at the instance and procurement of the agent of the company, it was absolved from the duty of observing ordinary care for his protection, and liable only for wilful injury. It is to the maintenance of that proposition that the argument in the briefs for the plaintiff in error is chiefly directed. The statement of the proposition as there made is, that as the jury specially found “the evidence did not show that the boy (the plaintiff) was upon the property of the company for any purpose except the performance of his contract with the station agent, the proper person for the boy to look to for protection or indemnity would be the person (the agent)- who sent him into danger;” and that, “under these circumstances the company owed him no duty of protection except against wilful injury.”

The evidence shows that the defendant had entrusted to its station agent the duty of keeping lighted a switch some distance from the station at all proper times, the method of doing which was by placing there at night lighted lamps that were left in the agent’s custody for that purpose. These lamps were carried from the station to the switch in time to be lighted before dark, and the next day taken back to the station to be cleaned and made ready for use at the switch at night. The defendant’s agent who had the full charge of this work employed the plaintiff, a boy ten years of age, to carry the lamps both ways between the station and the switch. He had been performing that service daily for several months before receiving his injury. While so engaged he was frequently noticed on the railway by the defendant’s employes in charge of and operating trains over the road at that place; and the jury found, in response to an interrogatory submitted by the defendant, that prior to the plaintiff’s injury, the conductors, engineers, and brakemen of the defendant’s trains had opportunities to know that “the plaintiff was accustomed to pass up and down the track to attend to the switch lights.” It was while the plaintiff was upon the defendant’s railway in the performance of this work that he found the torpedo and was injured by its explosion.

Independent of the plaintiff’s right to go upon the railroad at that place, because it had, by the acquiescence of the defendant, practically become a generally traveled highway, he was in no sense a trespasser or wrong-doer. Though the contract with the defendant’s agent was not binding on the company for want of authority on his part to make it, and no contractual relation existed between the company and the plaintiff, he was, nevertheless, there in the performance of a service for the company at the express invitation of its agent in whose control that service had been, placed by the company. Even if notice to the defendant’s station agent of the presence of the boy on the-railway under those circumstances, and of his daily-custom of passing along the track while engaged in the work he was so employed to do, should not beheld sufficient to charge the company with notice of' such use, the defendant otherwise had the means of' knowing by the exercise of ordinary care, that the plaintiff in the performance of his service was required and accustomed to go from the station to the switch and back, and thus necessarily pass along the company’s track; from which it might properly be inferred that the defendant acquiesced in that use of its track. And, a person of ordinary prudence would reasonably expect that the boy would pick up-an attractive article like an unexploded torpedo left, exposed at that place, and following his childish instincts, would be likely to handle and explode it. The company should, therefore, be held to the use of ordinary care to prevent the exposure of the boy to that situation of danger. Harriman v. Railroad Co., 45 Ohio St., 11; Railway v. Shields, 47 Ohio St., 387; Powers v. Harlow, 53 Mich., 507.

Beside, it is held in the majority opinion in this case, as I understand it, that, as the plaintiff, when he was injured, was on the defendant’s road in pursuance of his engagement with the station agent, in the performance of a service for the benefit of the company, of which the agent had control, the duty of due care to protect the plaintiff against injury rested upon the company. In that opinion it is said that “as the boy in this case by his engagement with the station agent was to perform a service in lighting and cleaning the lamps beneficial to the company on the •one hand, and to himself on the other, as he was to receive and did receive pay from the agent for his ¡services, we think that he was on the railroad at the time of the injury by the sufferance of the company, not as a servant of the company, nor as a trespasser, nor as a mere volunteer, but as one performing a service in his own behalf and for his own purpose and benefit, and entitled of right to be protected against the negligence of the servants of the company.”

In either view of the case, therefore, ordinary care was the measure of the defendant’s obligation to the plaintiff, and the refusal of the court to charge as requested, that the company was liable only for wilful injury, was not error.

The doctrine of fellow-servants appears to be inapplicable to the case. The cause of action arose in April, 1896, and the action was commenced in August of that year. The negligence charged as the proximate cause of plaintiff’s injury is not that of the station agent, but is that of the defendant’s employes in charge and control of its trains, a separate and distinct department of its service; so that, under our statute they were neither fellow-servants of the station agent, nor of the plaintiff if he may be called the servant of the company at all.

The reversal of the judgments for error in the charge given by the court, is based on the proposition that, because the plaintiff, when injured, was on the defendant’s roadway under his engagement with the •station agent, he lost the right which he otherwise had as one of the public that used the railroad, with permission of the company, as a travelled highway. If, however, as held in the majority opinion, the plaintiff was rightfully on the railroad track when he was-injured, because he was there in pursuance of his engagement with the defendant’s agent, and that gave him the right to protection from the negligence of the defendant, it would seem to be unimportant that he should have that right for any other reason; for, if the company was liable for its negligence upon the ground stated, the plaintiff was entitled to recover .upon proof of such negligence, and no contributory negligence appeared, although he was not then in the use of the track as one having the right to it as a generally travelled way. In that view of the case the portion of the charge in question was unavailable as a ground of error, because immaterial. But no-reason is given, nor is any perceived, why both rights-may not coexist; nor why the exercise of one should destroy the other. Indeed, the use of the railroad track by the plaintiff when pursuing his employment, with the station agent was a use of it as a way of travel; and his right to use it as a travelled way was not impaired, nor that nature of its use changed, by the fact that the defendant’s agent requested him to-make that use of it, any more than it would be if he travelled over the track at the request of any other' person, or on an errand for his parents, or on his. way to school. The only effect of his employment by the defendant’s agent was to give him an additional ground for claiming that he was lawfully on the railway when he received his injury. -

But, if it were otherwise, and he was on the railroad only in pursuance of his employment, he was,, as has been seen, lawfully there; and, on that ground entitled to recover in his action, if, without fault on his part, his injury was caused, as he claimed, through the negligence of the company in the use of the torpedo; and hence, it became not only proper, but necessary, that the jury should be instructed as to what would constitute negligence in the use of such dangerous instruments by a railroad company where children should be expected to go. The instruction which the court gave on that subject is part of the charge for which the judgments below have been reversed, and is as follows: “It is negligence for the servants of such railroad company, wantonly and needlessly, and without notice, warning or other precaution, to place and leave exposed to observation, at such point, or place on its railroad, where the public, including children, are and have been so permitted by the company to travel and pass, an apparently harmless, but in fact highly explosive and dangerous object, like a signal torpedo, easily picked up and handled by children and likely to attract them, and known to such servants to be such.” This portion of the charge is taken from the syllabus in the Harriman case, supra. Its soundness as a proposition of law is not disputed. Its principle has been accepted and approved in many cases, not only in this state, but in. other states generally. Its applicability to this case, in either view that has been taken of it, seems evident. Beyond that instruction and the statement cf the plaintiff’s claim, there is nothing more in the charge complained of, except that the burden was on the plaintiff to show “that the railroad company permitted its tracks and right of way to be used by the public and by children in the manner that I have already stated to you, and that while he was there upon that track or passing along the same under the circumstances stated in his petition, that he was injured by the explosion of this torpedo, and that the torpedo was placed there and left unexploded by the defendant, its servants or agents.”

Certainly it was not improper for the court to ■charge the jury that the burden was on the plaintiff to show that he was injured by the explosion of the torpedo, and that it was placed on the track where found, and left unexploded, by the defendant, its servants, or agents, as alleged in the petition. That burden was indisputably upon the plaintiff. The objection can only relate to that part of the charge which placed on the plaintiff the burden of proving “that the railroad company permitted its tracks and right of way to be used by the public, and by ■children,” as a public travelled way; and the ground ■of the objection stated is, that it was not applicable to the case because the plaintiff, when injured, was not using the track in that way, but was using it in pursuance of his engagement with the station agent.

If the plaintiff had the right to claim that he was lawfully upon the railroad when he was injured because it had become a public travelled highway at that place by the defendant’s permission, then it is conceded this charge would be correct, pertinent and material. And, if his right to be on the track is restricted to the ground that he was there in the performance of his engagement with the defendant’s agent, under the rule declared in the majority opinion, the proof required by this instruction was wholly unnecessary to his recovery. It simply imposed upon him a burden that was not incumbent on him, and in this respect might be harmful to him; but the imposition of such unnecessary burden on him could in no way be harmful to the defendant. On the contrary, it gave the defendant an additional chance of •escaping liability at the hands of the j.ury, if the plaintiff failed to make the proof required by the instruction, a chance to which the defendant was not entitled. Instead, therefore, of this instruction being prejudicial to the defendant, it might have proven beneficial. In any aspect of the case the charge given affords no ground for a reversal of the judgment.

The testimony held to be incompetent relates to a transaction and conversation between a person of whom the witness speaks as a “trainman” and the agent in charge of the defendant’s railroad station, by which the former obtained from the latter in the station, a signal torpedo. These instruments are kept by the agents at railroad stations for the use of trainmen for giving signals in the operation of trains. The testimony is held incompetent because the witness did not first qualify himself to speak of the person referred to as a “trainman.” The occurrence to Avhich the testimony relates took place at the station near which the plaintiff was injured, and at a time Avhen a freight train had recently arrived. That station is situated in a small village.where few persons went, and the agent appears to have attended to all business at the station, even to the lamps at the switch some distance away. No other employes were required. These facts were before the court and jury when the witness testified. The identification of a trainman is not the subject of expert testimony. The identity of a conductor or engineer passing from a train just arrived into the station, is as obvious to common observation, as that of a policeman on his beat in a city. And it would seem as unnecessary to the competency of testimony of the acts of the former for whose use signal torpedoes are kept, in obtain- ' ing such instruments of the agent at the station where they are kept for that purpose, that the witness should first testify lie knew the person to be a conductor or engineer, as it was that he should first testify he knew the person in charge of the station to be the station agent, or would be that he knew a policeman when he saw one, before he could testify that he saw a policeman make an arrest. If there was any doubt of the accuracy of the witness’ knowledge on the subject he was open to cross examination, and the weight of his testimony in that respect, as well as in all others, was for the jury.

For these reasons I am unable to concur in the majority opinion, or in the judgment.

Minshall, J., concurs in the dissenting opinion.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    The Phoenix Ins. Co. of Brooklyn v. T. & W. R. Carnahan. The Connecticut Fire Ins. Co. v. T. & W. R. Carnahan. The Phoenix Ins. Co. of Hartford v. T. & W. R. Carnahan. The Commercial Union Assurance Co. v. T. & W. R. Carnahan. The Northern Assurance Co. v. T. & W. R. Carnahan. The Ins. Co. of North America v. T. & W. R. Carnahan.

      Fire insurance — Suit by partnership to recover on policy — Suit in -firm name — Section SOU, Revised Statutes. — Result of death of partner during suit — Sections 8167-9, Revised Statutes — Assignment by insured of money claimed on loss— Status of assignee — Condition in policy of arbitration or appraisal of loss — Denial by insurer of ultimate liability not

      denial of amount of loss — Grounds of defense — Section 5071, Revised Statutes — Arbitration may be claimed, by insurer, when — Charge to jury as to conditions of arbitration.

    1. 'Where a partnership sues in the firm name, under Revised Statutes, Section 5011, an allegation in the petition setting forth the names of the individuals who constituted the partnership, js surplusage.
    2. If in such case one of the partners dies, the plaintiff firm is under a disability within the meaning of Revised Statutes, Section 5012, and the action is in abeyance and can not proceed without revivor by substitution of the representative or successor in interest, in place of the partnership, which revivor must be on motion of the party to be substituted, or by a conditional order, or upon a supplemental petition.
    3. A surviving partner can not be so substituted as ths party in interest until he has conformed to the provisions of Revised Statutes, Section 3167 to 3169, inclusive.

      A If, after the destruction, by fire, of property which is insured, an assignment of the money to be paid on the loss is made by the insured, reserving no rights to the insured except to collect the same and to be reimbursed for costs and expenses incurred therein, the assignee becomes the real party in interest as to the chose in action and suit must be brought, and in case of the death or disability of the original plaintiff the action must be revived, in the name of the assignee; and this is so whether the suit is instituted against the insurer after or before the assignment. Lowry v. Anderson, 57 Ohio St., 179, distinguished.
    5. A condition in a policy of insurance against fire, that in case of loss and a disagreement or difference between the parties as to the amount of the loss, that amount shall be ascertained by arbitration or appraisal, is a proper and valid condition; and where it is also provided that the condition as to arbitration or appraisal must be complied with before n suit can be brought against the insurer, the condition is thereby made a condition precedent, and to entitle the insured to maintain an action to recover under the policy, he-must show that he has cither performed the condition or has a legal excuse for non-performance thereof.
    6. A denial of ultimate liability, on the part of the insurer is not necessarily a denial of the amount of the loss, and is not so inconsistent therewith as to amount to a waiver of the condition as to arbitration or appraisal of the amount of the loss, unless such denial is made under such circumstances, or is accompanied by such conduct, as would make such arbitration or appraisal fruitless, or such as would justify the insured in believing that an attempt on his part to perform the conditions would not be responded to by the insurer.
    7. Under Revised Statutes, Section 5071, a defendant may set forth in his answer as many grounds of defense, counterclaim or set-off as he may have, provided that they are so far consistent that they can be verified by oath without swearing falsely; and within the limits of that section, an insurer may join in his answer a defense that the insured has not performed a condition precedent as to arbitration or appraisal of the amount of the loss, with other defenses which if successfully maintained, would discharge the insurer from liability altogether.
    S. Where, upon receiving proofs of loss from the insured, the insurer disputes the amount as therein claimed by the insured, and demands an arbitration or appraisal, as provided in the policy, to ascertain the amount of the loss, there is a disagreement or difference such as will be the foundation for such arbitration or appraisal.
    9. A demand made under such circumstances by the insurers, accompanied by a request to the insured to meet the insurers at a time and place convenient to, and to be designated by, the insured for the purpose of selecting appraisers, is an offer to perform the condition on part of the insurers; and a neglect to comply with such demand or to accept such proposition, under a claim that there was no disagreement as to the amount of the loss, until the goods remaining after the fire were sold by the insured, is a refusal on part of the insured to perform the conditions precedent as to arbitration and appraisal; and a refusal to charge the jury that “it appears from the evidence in this case, which is wholly in writing and does not depend upon extrinsic facts, amd therefore is wholly a matter of law to be decided by the court, that the defendant duly requested, and the plaintiff refused, a demand for appraisal and award as provided in the terms of the policy, and the jury are therefore instructed to return a verdict for the defendant,” is error.
    10. A charge to the jury that they were “at liberty to determine whether the demand for arbitration was made by the defendant in good faith with an intent on its part to have such arbitration” was erroneous; as was also, under the circumstances of this case, the following additional instruction to the jury: “And also whether after such demand made the defendant neglected and refused to go further and to appoint its arbitrator and take such further steps as was necessary to make such arbitration effectual.”
    (Decided November 13, 1900.)
    Error to the circuit court of Hancock county.
    The defendant in error, T. & W. R. Carnahan, a partnership firm formed for the purpose of doing business in the state of Ohio, began these actions in the court of common pleas, against the several plaintiffs in error, to recover, upon their several policies of insurance, the amount claimed to have been lost by fire on the store of the defendant in error. The Northern Assurance Company and the Insurance Company of North America, defended upon the ground that the rights of the plaintiff had been assigned before the suit, and that the action was not begun or carried on in the name of the real party in interest; also, that one of the partners in the plaintiff firm having died after the suit was commenced, the action was not revived by substituting the representative or successor in interest of the plaintiff firm. In the other cases these defenses were raised on the trial by motions to direct a verdict for defendant; but in the answers several other defenses were joined, including a defense setting out a condition precedent in the policy as to arbitration of the amount of the loss and that there was a disagreement as to the amount of loss, that arbitration had been demanded, that no arbitration had been had as provided, that defendant had the right to take the whole or part of the property damaged at the valuation put on it by the arbitrators, and that the plaintiff declined and refused to enter into any arbitration but sold the goods saved from the fire, so as to make arbitration impossible, and so that the exercise of said option by the insurer became impossible. The plaintiff in reply made an issue on all of the defenses, and charged that the demand for arbitration was made in bad faith. On the trials in the common pleas it appeared that Theophilus Carnahan, one of the partners in the firm of T. & W. R. Carnahan, had died since the commencement of the actions; and that on May 3, 1894, after the loss and before the commencement of the suits, T. & W. R. Carnahan, T. Carnahan and W. R. Carnahan, assigned and set over to The II. B. Claflin Company of New York, all the rights, title, and interest said Carnahans had or might have to the moneys to be paid in satisfaction of the loss sustained by them by the burning of their store in Findlay, Ohio, by the Phoenix Ins. Co. of Hartford, the Northern of London and other companies. By this assignment the Carnahans were “to proceed to collect all said moneys in their name, but the same when ready to be paid over shall be paid directly to said, The H. B. Claflin Company, or their authorized agent.” It also appeared that on January 17, 1895, T. & W. R. Carnahan made a similar assignment to the H. B. Claflin Company of New York of the money coming on collection of the policies issued by the Phoenix Insurance Co. of Brooklyn, the Connecticut Fire Ins. Co. of Hartford, the Commercial Union Assurance Co. of London, and other companies.
    The evidence as to demand for arbitration by the companies was wholly within certain letters which were submitted to the jury.
    Motions to dismiss, motions to direct verdict for defendant, requests to specially charge the jury to return verdict for defendant, were overruled and exceptions taken by defendants. Exceptions were taken to the charge given to the jury. Verdicts were for the plaintiff and motions for new trial were overruled and bill of exceptions embodying the whole evidence allowed. On petitions in error the circuit court affirmed the judgments of the court of common pleas.

      Thos. A. Logan; Boss é Kinder and H. F. Burhet, for The Phoenix Ins. Co., of Brooklyn, N. Y.; The Phoenix Ins. Co., of Hartford, Conn.; The Connecticut Fire 1'ns. Co., of Hartford, Conn., and the Commercial Union Assurance Co., plaintiffs in error.

      Henry W. Beney; Boss & Kinder and H. F. Burhet, for The Northern Assurance Co., of London, England, and The Insurance Co., of North America, plaintiffs in error.

      George F. Pendleton, for defendant in error.
   Davis, J.

The record in these cases presents three material questions for decision. The determination of no one of them will be decisive of all of the cases. The same questions are understood to be involved in other cases which are still pending in the courts below. It has, therefore, been deemed advisable to. fully consider and decide all of these contentions in the present cases.

I. These suits were all brought in the partnership name, under the provision of Revised Statutes, Section 5011, and are not suits by the individuals who constituted the firm. It is true that each of the petitions contains an averment that Theophilus Carnahan and W. R. Carnahan are equal partners in the firm and compose the partnership; but in this form of action, this allegation is immaterial and is mere surplusage. Winters v. Means, 50 Neb., 209; Dimond v. Bank, 70 Minn., 298. Sometime after the actions were commenced, one of the partners died, and the death of this partner raises the question whether the-actions should hare been revived and should have proceeded in the name of the representative or successor of the firm, or whether, the death of the partner-having been suggested to the court, the action properly-proceeded to judgment under the order of the court, without change of caption or title. This point is-raised by motion to dismiss and by motion to arrest the testimony from the jury and to direct a verdict for the defendant.

It may be conceded at once that the cause of action did not abate by the death of one of the partners,, nevertheless his death dissolved the partnership firm,, so that the action was in abeyance, and could not proceed until somebody who succeeded to the ownership of the chose in action had been substituted for the defunct partnership firm. The action could no more proceed in the name of the late partnership than a. suit could be prosecuted in the name of an individual plaintiff who has died. Our statute provides that certain causes of action shall abate on the death of a party, but provides the mode by which, in all other cases, the action may be revived and proceed in the name of the representative or successor of the party who is under disability or has died. None of the sections of the statute which provide for revivor when one of several plaintiffs or defendants dies, applies, here, because there are not several plaintiffs in these-suits, but only one, the partnership firm' of T. & W., K. Carnahan. Revised Statutes, Section 5012, governs these cases, and is in part as follows: “Upon the disability of a party the court may allow the action to continue by or against his representative or successor in interest, and upon any other transfer of interest the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him ” This substitution may be made on motion of the successor in interest, or by a conditional order of revivor served on the opposite party, or by supplemental petition and process. Revised Statutes, Sections 5149-5151; Carter v. Jennings, 24 Ohio St., 182. This was not the procedure followed in these cases. The following journal entry is a sample of what was done in all of the cases: “The plaintiff, by its attorney, on this January 31, 1899, suggests that since the commencement of this action, T. Carnahan, one-of the plaintiff firm, has died, and that said W. R. Carnahan is now the sole surviving partner, ordered that this action proceed to judgment without change' of caption or title and this cause is continued to the next term thereof.” There was in this proceeding, a failure to comply with the statute, even if W. R.. Carnahan, as the sole surviving partner, was the sole-successor in interest of the late firm. But was he such successor? We think that it is perfectly clear that he was not, and is not, such successor under the Ohio statute. Revised Statutes, sections 3167-3169.. A surviving partner does not become the successor-in interest of the partnership until he has made application in the probate court for the appointment of appraisers who shall make, under oath,, a complete inventory of the assets and liabilities of the partnership- and deliver the same to the surviving partner who-shall file the same in the probate court, nor until he-has elected in the probate court to take the interest of the deceased partner in the partnership assets at its, appraised value, and given bond for the payment of the debts of the partnership. Should the surviving partner fail to do this, it is made the duty of the executor or administrator of the deceased partner to apply for the appointment of a receiver, who shall proceed to wind up the partnership and dispose of the assets thereof.

It appears from these records that although an administrator for the estate of the deceased partner, was appointed and qualified, the surviving partner did not proceed under the statute, nor was a receiver appointed. In short, this statute not having been complied with, there was no successor in interest who was entitled to proceed with the action. Nor was this omission cured when brought to the notice of the court. Inasmuch as the surviving partner and the adminstrator of the.deceased partner neglected, and persisted in the neglect, to provide for a proper substitution of parties, and as the court did not revive the action in the mode provided by law, and the persons to whom the interest of the firm had been transferred did not apply to be substituted, it follows that all of the proceedings subsequent to the death of T. Carnahan were erroneous.

II. After the loss occurred and before suit was brought, the plaintiff and also T. Carnahan and W. R. Carnahan, assigned all their right, title and interest to the money to be paid in satisfaction of the loss, to The H. B. Clafiin Company of New York. This assignment does not appear to be contingent or in pledge, but is absolute; and the Carnahans “are to proceed to collect all said moneys in their name, but the same, when ready to be paid over, shall be paid directly to said The H. B. Clafiin Company, or their authorized agent.” The stipulation which we have quoted makes the Carnahans agents of the Claflin Company for the purposes of mere collection; but it does not authorize suit to be brought in their name, although it so says; because the code is imperative that the action must be brought in the name of the real party in interest (Revised Statutes, Section 4993; Duncan v. Willis, 51 Ohio St., 433, 444; Buckingham v. Buckingham, 36 Ohio St., 69), and the Carnahans have reserved no substantial interest whatever in the money to be paid under the designated policies. Of the cases now under consideration this assignment affects only the Phoenix Insurance Company of Hartford and the Northern Assurance Company of London. After the suits were begun, that is, on January 17, 1895, and before the death of T. Carnahan, the plaintiff firm assigned, transferred and set over. to The H. B. Claflin Company the money coming to it on certain other designated policies, “absolutely to satisfy debts” due from the firm to said company, subject only to costs and charges of collecting. It was also stipulated that the pending suits should be prosecuted to termination by T. & W. R. Carnahan, but that the judgments that might be recovered thereon should belong to The H. B. Claflin Company. This assignment includes the policies of the Connecticut Insurance Co., of Hartford, the Commercial Assurance Co. of London, and the Phoenix Insurance Co. of Brooklyn. It left no right remaining in T. & W. R. Carnahan, except authority to act as agent for TheH. B. Claflin Company in the collection of the claims and to be reimbursed for costs, attorney fees and expenses incurred in that respect. Under both of these assignments The H. B. Claflin Company became the real party in interest. Spratley v. Hartford Ins. Co., 1 Dillon (U. S.), 392. Hall v. Dorchester Mut. F. Ins. Co., 111 Mass., 53. And the only difference in the effect of them was that, under the one-first mentioned above, an action could not be legally-begun and prosecuted except in the name of the H. B. Olaflin Company, while under the second mentioned assignment the actions should have been revived by substituting the assignee of the interest as plaintiff. The case of Lowry v. Anderson, 57 Ohio St., 179, does not apply here. The point of that decision was that, .the transfer of interest, pending the suit, was no defense to the action, and that was the only point decided in the case. It was expressly stated in the-opinion that the assignee might be substituted for the-original plaintiff. The case does not touch the point, which arises here, viz: that the actions were not begun or prosecuted in the name of the real party in interest. We think that in this respect also there is reversible error in the proceedings of the courts below.

III. We come now to the discussion of questions which more directly affect the subject of the actions. For convenience we may regard the conditions of these several policies as substantially the same; for we do not regard the distinctions which are sometimes', drawn between “arbitration” and “appraisement,”' and between “disagreement” and “differences,” as being very material to our present inquiry. These policies all provide that upon the parties failing to agree, or upon differences arising, as to the amount of loss, or damage, the amount shall be ascertained by arbitration or appraisement, and that this shall be a condition precedent to the bringing of a suit upon the policies. This is a valid condition, as it does not operate to oust the courts of jurisdiction over the cause of action, but binds the parties only to the ascertainment, by appraisal, of a single element of the case, viz: the amount to be recovered,lUthere should "be'lihy recovery at all. A denial of ultimate liability is not necessarily a denial of the amount of the loss, and in many cases, perhaps in most cases, there is nothing inconsistent in demanding a compliance with the conditons agreed upon for ascertaining the amount of loss or damage, and at the same time insisting that there are legal defenses to any liability whatever. It is true, that there are classes of cases, total loss for example, in which it would be utterly vain to appraise the loss when all liability is denied; and when the insurer does not demand an appraisement and so insists upon a denial of any liability whatever as to mislead the insured into omitting to demand an appraisement, there may be sound reason for holding the insurer to be estopped from pleading the condition precedent. This is upon the principle that if either party acts in bad faith so as to defeat the real object of the clause, such conduct absolves the other party from compliance therewith. Uhrig v. Ins. Co., 101 N. Y., 365. But these cases do not call for the •application of this principle. The insurers have not deluded the insured into a failure to comply with the arbitration clause. On the contrary, they have persistently kept it before the insured and demanded compliance with it.

Under our code of civil procedure a defendant may set forth in his answer as many grounds of defense, counterclaim, or set-off, as he may have, provided that they are so far consistent that they can be verified by oath without swearing falsely. Revised Statutes, Section 5071. Bank v. Closson, 29 Ohio St., 78, 81; Ins. Co. v. Frick, 29 Ohio St., 466; Pavey v. Pavey, 30 Ohio St., 600. There is no inconsistency, nor any implied falsehood, in the insurer swearing that he believes that the insured set his store on fire, or that he violated the conditions of the policy as to the storage of kerosene, and at the same time and in the same answer swearing that the insured neglected or refused to arbitrate as to the amount of his loss, when theparties to thecontract differeclon that point. Johnson v. Ins. Co., 41 Minn., 397; Kahnweiler v. Ins. Co., 3 Ins. L. J. N. S., 393; Briggs v. Ins. Co., 65 Mich., 52 Betcher v. Ins. Co., (Minn.), 80 N. W. Rep., 971. The insured does not, in its petition, plead a waiver of the arbitration clause, but on the contrary pleads performance on its part, of all the conditions precedent in the contract. But in reply it insists that the insurers have waived the arbitration clause, and charges bad faith on part of the insurers in all that was done-in regard to arbitration and appraisement. Now by the terms of each of these policies the condition as to-arbitration or appraisal of the loss is very clearly made a condition precedent; and therefore until the condition is complied with, or a fair effort made to comply, on part of the insured, no cause of action can arise. Old Saucelito Land and Dry Dock Co. v. Commercial Union Assurance Co., 66 Cal., 253; Uhrig v. Ins. Co., 101 N. Y., 362. There was no occasion for an appraisal of the loss, under the arbitration clause, before the proofs of loss were submitted, because what, the plaintiff would claim was unknown, and no difference of opinion had arisen as to the amount of the-loss before that time. Therefore there was not, and could not be, any waiver of that clause before that, time. Immediately on receiving the proofs of loss-the insurers notified the insured of their dissent from the claim of the insured as to the amount of the losa and demanded an “arbitration to determine the amount of. tbe loss under tbe terms of tbe policy,” which they have insisted upon ever since. Then ensued a correspondence on that subject, extending over some weeks of time. The evidence in relation to a demand for appraisal by the insurers, and refusal thereof, by the insured, lies wholly within this correspondence; and it is impossible to regard it in any other light than as showing a definite assertion of a difference as to the amount of the loss claimed by the insured in its proofs of loss, an explicit demand for the appointment of appraisers, and a proposal to meet the insured at Findlay or elsewhere, at such time as might suit the convenience of, and be designated by, the insured, to carry out that purpose. This proposition, iterated and reiterated, is met by a denial that there was any “disagreement” or “difference” as to the amount of the loss, which was a distinct evasion of the demand; and it is the merest trifling with words to say that this quibbling and evasion, which was continued until an appraisal was rendered fruitless by the sale of the remnants by the insured, does not amount to a refusal on the part of the insured to perform the condition as to arbitration or appraisement of the loss. Hamilton v. Ins. Co., 136 U. S., 242; Zalesky v. Home Ins. Co., 102 Iowa, 613. While it was the explicit contractual duty of the insured to, at least, make a fair effort to comply with the conditions, an unfair effort to avoid it is disclosed by the correspondence. And yet the trial court not only refused to arrest the testimony from the jury, and to direct a verdict for the defendants, in each case, but instructed the jury that they were “at liberty to determine whether a demand for appraisal was made by the defendant in good faith with an intent on its part to have such appraisal, and also whether, after such demand was made the defendant neglected and refused to go farther or appoint its appraiser and take such further steps as were necessary to make such appraisal effective.” If the insured had accepted the proposal to appraise and the insurers had then neglected or refused to go farther or to appoint appraisers, this instruction would have been proper; but when the insured neglected or refused to accede to the demand by the insurer, the latter was not bound to go farther in that respect. Indeed, whatever may be required of the insurer when once a demand for arbitration has been made on either side, the insurer is not bound to assume the initiative by making a demand. Kahnweiler v. Ins. Co. (U. S. C. C.), 3 Ins. L. J. N. S., 393. The insured can not rest upon the silence of the insurer as to arbitration, when a difference arises as to the amount of the loss. It was therefore incumbent on the insured, not the insurer, to perform this condition as a condition precedent to his right of recovery, whenever a difference should arise, as to the amount of the loss whether a demand was made by the insurer or not; and a fortiori when the other party asserted a difference and demanded a compliance with the contract, the insured firm was put to its choice, at its peril, whether to perform or not.

The court was also wrong in instructing the jury to determine whether the demand for appraisal was in good faith. The right to demand an appraisal was a distinct contractual right. The motive which lay behind the assertion of that right does not lay within the province of the court or jury. Where the parties have fixed their respective rights by contract, the courts may not interfere with the terms of the contract, unless there was fraud in its inception. Good faith is required of both parties in the conduct of arbitration or appraisement when once entered upon; but when the right to have arbitration or appraisement is given to either party by contract, it is immaterial what motive may prompt a mere demand for performance. '

It may be suggested that if The H. B. Claflin Company is the real party in interest in some of these cases, the demand for appraisement should have been made upon them. The firm of T. & W. B. Carnahan was, however, the agent of the Claflin Company for the collection of the money, and demand upon the agents who had charge of and were in possession of both the policies and the property to be appraised, was demand upon the principal. In fact, the first notice of disagreement and demand for arbitration to T. & W. R. Carnahan was before The H. B. Claflin Company gave notice to the insurers of the assignment to it.

It follows that the judgment of the circuit court and of the court of common pleas in all of these cases must be reversed, and that in all of the cases, except that of the Insurance Company of North America, final judgment must be rendered in favor of the plaintiffs in error, respectively. In the case of the Insurance Company of North America v. T. & W. R. Carnahan, the assignment was made pending the action, and the defense as to failure to perform the conditions in regard to arbitration, was withdrawn. As the action may be revived, with consent of the plaintiff, by substitution of the assignee as plaintiff (Revised Statutes, Section 5158), that case will be remanded for further proceedings. If the insurance company should refuse to consent to such revivor, it would be the duty of the court of common pleas to dismiss the petition and render final judgment for the defendant, plaintiff in error here.

Reversed.

Minshall and Williams, JJ., dissenting.


author: Spear, J.

text:
    The Toledo & Ohio Central Railroad Co. v. The Bowler & Burdick Company.

      Merchandise package shipped hy passenger under guise of haggage — Authority of agent of one line to check over connecting lines — Extent of inquiry required of checking agent— Law of negligence — Railway accident through error of engineer in reading tim.e — Law of common carriers.

    1. Where the only authority given by a railroad company to the baggage agent of a connecting road is to check baggage to all stations on the line of the former road, no presumption follows that such agent has authority to check merchandise over the line of said road under the guise of baggage, and knowledge on the part of such agent that a passenger’s trunks contain merchandise and not baggage, is not sufficient to charge such company with knowledge.
    2. On receiving such trunks from the connecting road for carriage, the company, being thus without actual knowledge of their contents, has the right to assume that they contain baggage only, and is not bound to make inquiry as to their real contents.
    3. A carrier of passengers is not liable for the loss of a package containing merchandise, shipped over its line by a passenger under the guise of baggage, where neither the carrier nor its proper agent has actual knowledge of the contents of the package, and the loss is occasioned hy ordinary negligence and not that gross neglect of duty which amounts to willfulness and evinces a reckless disregard of the rights of others.

      4. Where, in such case, the cause of a loss of the merchandise was a collision between trains occasioned by the engineer of a helping engine misreading his watch as three o’clock when it was in fact three-fifteen o’clock, thus giving but six minutes to reach a meeting point where twenty-one minutes -were required, the mistake being brought about by the engineer holding the stem of his watch — -an open-face movement in a hunting case — horizontally instead of perpendicularly when noting the time, the company will not be liable, the negligence not being gross negligence within the meaning of the preceding paragraph. The Pennsylvania Go. v. Miller, 35 Ohio St., 541, as to the second paragraph of the syllabus, is overruled.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Lucas county.
    The action below ivas by defendant in error to recover of plaintiff in error for the value of certain merchandise destroyed while in transmission on the road of the. Railway Company by reason of its alleged negligence. At the trial a verdict for the value of the merchandise ($4,986.42) was rendered for plaintiff below, and judgment entered on the verdict, which, upon error being prosecuted to the circuit court, was there affirmed. The facts are stated in the opinion.

      Doyle & Lewis, for plaintiff in error.

      Gilbert & Hills, for defendant in error.
   Spear, J.

Facts essential to an understanding of the case made by the record follow:

The occurrence out of which the controversy arose took place March 16, 1898. At that time the Toledo & Ohio Central Railway Company owned and operated a line of road from Corning, in the county of Perry, to Bucyrus, in the county of Crawford. At the former place its line connected with the line of the Kanawha & Michigan Railway Company, running thence southeasterly to Athens. The two roads were operated as a continuous line of road between the termini mentioned, and, by the traffic arrangement then existing, through passenger trains were run over the entire line without change of cars. Orews managing through trains were changed at Corning, the one managing the trains south of Corning being in the employ of the Kanawha & Michigan road, and crews managing trains north of Corning being in the employ of the Toledo & Ohio Central road. In collecting mileage from passengers on through trains the conductors kept separate accounts and returned to the respective companies the amounts collected for the respective roads.

On the day named above, one H. W. Burdick, a traveling salesman for the defendant in error, came from Athens on the line of the Kanawha & Michigan road, to Glouster, another station on the same road. He was traveling on a mileage ticket issued by the Wheeling & Lake Erie Company, good for passage over other roads, including those before mentioned. The ticket, which was signed by Burdick, provided that uthe holder of this ticket shall be allowed free transportation of 150 pounds of baggage, and the company transporting it is hereby released from any and all claims and demands whatsoever, for any delay or for any and all loss or damage while in its possession, in excess of 100 pounds.”

There came with Burdick, on the train from Athens, two trunks containing watches and jewelry for sale to the retail trade, but not containing baggage. On reaching Glouster he had the trunks taken to the sample room of an adjacent hotel, and there exhibited the contents to customers. Later, the trunks were taken to the station by Burdick’s direction, and he caused them to be checked to go on the same train with himself to Bremen, a station north of Corning and on the line of the Toledo & Ohio Central road. Testimony was given at the trial by the plaintiff below for the purpose of showing that the baggage-master at Glouster, one Jones, who checked the trunks to Bremen, knew that they contained merchandise, and it is probable that the jury found in favor of the plaintiff on that question. This baggageman was the employe of the Kanawha & Michigan Company, and in no sense the agent of the plaintiff in error, except as stated in the stipulation hereinafter to be mentioned. The trunks thus checked were carried by the Kanawdia & Michigan road to Corning, and there passed into the possession of the Toledo & Ohio Central road, and from thence proceeded north toward Bremen, the point of destination. At Glouster, Burdick paid Jones thirty cents excess weight on baggage to Bremen, and took a receipt called “excess baggage receipt.” The property was destroyed by fire resulting from a collision which, it is stipulated, and is thus part of the record, occurred under the following circumstances: “The said collision occurred between said passenger train and a helping engine, both being in charge of employes of defendant, and the said collision was caused by the engineer of the helping engine misreading his watch as three o’clock, when, as a matter of fact, it was three-fifteen o’clock, which mistake resulted in giving him only six minutes to reach Claybank, a distance of ten miles, which it was impossible for him to do. The engineer had an open-face watch movement in a hunting case, and he held the stem horizontally instead of perpendicularly when reading the watch, and this causing the said error.”

It was not found possible to save the property or the train, and it was consumed.

Respecting the agency of the baggage-master at Glouster it is stipulated: “That Glouster, the point at which Mr. Burdick took the train which was wrecked, was a station on the Kanawha & Michigan road, and that under the traffic arrangements, the baggage agent at that point and his assistant had authority to check baggage to all stations on connecting roads, including those on defendant’s road, and that said assistant of the regular baggage agent at said point did check the trunks mentioned in the petition, on the occasion therein mentioned to Bremen, a station on defendant’s road, and placed the said trunks on the north bound through train.” And this is the only evidence bearing upon that question.

At the trial the court, among other things, instructed the jury that: “If the defendant received these goods, this jewelry, without any knowledge as to the contents of the trunks, then it became liable only as an ordinary bailee, and it owed to the plaintiff the duty of ordinary care, as I define it to you. If the defendant received the goods, and undertook to ship them to Bremen, it was its duty to use such care in their transportation and shipment as an ordinarily prudent person is accustomed to use in dealing with his own property under the same circumstances and conditions. If it cared for this property in such manner, and it was lost by no act of negligence, as thus defined, the plaintiff cannot recover; but if it failed to use this degree of care, that is, that care that the ordinarily prudent person takes of his own property in precisely, similar circumstances, then the plaintiff is entitled to recover.” And this is one, perhaps the principal, ground of error alleged.

In brief, the charge is that the company would be liable for the value of the jewelry and watches whether it had knowledge that the trunks contained such merchandise or not, provided the loss was occasioned by the negligence of the company. This instruction practically eliminated from the case the contested point on the evidence as to the knowledge of the baggage man at Glouster respecting the contents of the trunks.

To show that this was an erroneous instruction, we need but cite the decision of this court in this case when here before, as found reported in 57 Ohio St., 38. The syllabus is: “Although a common carrier of passengers is under no obligation to carry articles of merchandise as baggage, and although it is not liable for the loss of such merchandise if it is tendered to and received by it as baggage without actual knowledge of its true character; yet if it receives and checks merchandise as baggage with actual knowledge on the part of its agents that it is merchandise, it thereby waives its right to immunity from liability because of the character of such article.” This is holding in effect that a common carrier of passengers, being under no obligation to carry articles of merchandise as baggage, is not 'liable for the loss of such merchandise if it is tendered to and received by it as baggage without actual knowledge of its true character. Further comment upon this proposition would seem to be unnecessary.

The court further instructed the jury as follows: “The plaintiff claims that the defendant undertook to carry these trunks of jewelry of the plaintiff safely from the station of Glouster to the station of Bremen, and that the baggage agent of the defendant at Glouster had actual personal knowledge that the trunks contained merchandise and did not contain the baggage of H. W. Burdick, who was the agent of plaintiff..

“Upon this, the claim of the plaintiff, you are instructed that if you find that the agent at Glouster, Jones, when he received, checked and shipped these trunks of jewelry upon the occasion in question, had actual personal knowledge that they contained jewelry, and that the same were destroyed while in the defendant’s custody, you should find for the plaintiff.

“Upon this branch of the case, the question of liability turns upon whether or not Joe Jones, the baggage agent, had actual knowledge of the contents of these trunks. It is not claimed that anybody else hacl actual knowledge, but if Joe Jones had actual knowledge, and you find that he had the power and authority to receive baggage, or receive merchandise and trunks in this manner, and check them for the defendant, notice to Joe Jones would be notice to the defendant. ' The power and authority to take baggage, or merchandise as baggage, gives the power to receive notice of the contents of the baggage.

“The liability, therefore, as I have told you, turns upon whether the agent of the defendant at Glouster had actual knowledge when he received and checked the trunks in question, that they contained samples of merchandise, and were not ordinary baggage.

“If he had such knowledge, you must find for the plaintiff; if he had not such knowledge, you must find for the defendant, — that is, upon this branch of the case, and the burden of proof upon all of these questions is upon the plaintiff.

“And here I will give, as pertaining to the case, certain charges asked by counsel in the case. The following is a correct proposition of law asked for by the plaintiff: If the jury find that the agent at Glonster, when he received, checked and shipped plaintiff’s trunks of jewelry, on the occasion in question, knew that they contained a stock of jewelry, and that the same was destroyed while in defendant’s custody, you should find for the plaintiff.”

These instructions, in one paragraph, appear to leave to the jury the question of determining not only whether the baggageman Jones had knowledge of the contents of the trunks, but whether he had authority from the Toledo & Ohio Central Railway Company to receive merchandise and trunks and check them, and further instructs that notice to Jones would be notice to the company, and the power and authority to-take baggage gives the power to receive notice of ihe contents of the baggage, while in another paragraph the case is made to turn wholly upon whether or not Jones had actual knowledge of the contents of the trunks irrespective of what they might find as to the authority Jones possessed. This left the matter in a state of uncertainty before the jury; but beyond this the assumption is that Jones, in whatever act the evidence showed he performed with respect to the trunks, and whatever knowledge he had as to their contents,-was the agent of the Toledo & Ohio Central Company; and this is based upon another assumption, viz: that authority to the employe of a connecting road to check baggage carries authority to check merchandise as baggage, for no other or different authority is shown. This question was presented by the record when this case was formerly before the court, but for reasons which need not be here stated, was not discussed by the court nor disposed of. A majority of the court is now of the opinion that no such presumption follows. Especially does it not follow in this case. Equally misleading is the direction that the power to take baggage gives power to receive notice of the contents of the baggage. There was in this case no baggage concerning the contents of which notice could be given or taken. Nor is it the duty of a company to examine into or pass upon the specific contents of baggage. The company may relv upon the implied representaion that whatever'is offered by the passenger as baggage is that, and nothing else. If it be baggage, the baggage goes under the contract to carry; if it is not, it does not. Stimson v. C. R. R’d. Co., 98 Mass., 83. The right to have baggage carried is a right personal to the passenger, and is an incident to his right to have himself carried. Both rights in this case rested upon the written contract. In the carrying out of that contract the baggageman at G-louster might represent the connecting road. But the agreement to carry merchandise would be a wholly different agreement. As to such property the Toledo & Ohio Central Company had no opportunity to make an agreement, and none existed between it and any person whomsoever. Such service, which is freight service, is performed by express companies, or by fast freight companies, or by the railroad company itself; but when by the latter it is by a different department, managed under rules different from those controlling the carrying of passengers, and often, perhaps more frequently, by different persons as agents. And being thus a different service, governed by different rules and managed by different agencies, it is utterly unreasonable to say that authority to act for a connecting company in one branch implies authority to act for it in the other. And hence the agreement or understanding between the man Jones and Burdick respecting the trunks, in so far as it related to merchandise, whatever it may have been, was not the agreement or understanding of the Toledo & Ohio Central Company, and, as to that subject matter, there was no agreement or understanding bet ween the passenger Burdick and the Company. Its contract with him was a strictly personal contract for his safe transportation over the railroad, to which the carriage of suitable personal baggage was, as before stated, merely incidental. He had no right to transport merchandise under cover of his personal baggage;.much less could he take merchandise which belonged to other persons, and thereby give them the right of a contracting party against the Company, for a contract to carry Burdick’s person and his personal baggage could not, with reason, be tortured into a contract to carry the plaintiff’s merchandise. True, the Company did carry the merchandise. But it had the right to assume, when it took charge of the car containing the trunks at Corning, that they contained baggage, and no duty devolved upon it to make inquiry as to their real contents.

It must be borne in mind that we are here dealing with the liability of a carrier of passengers, not with a carrier of freight, as such. As to the latter they transport all manner of goods, classify them, and charge according to the class. Thus they are called upon to inquire into the contents and character of what is offered and may do so with as much thoroughness as they may desire, and with whatever care or the lack of it that is done, there is a contract to transport the package with full opportunity to know its contents. Hence it has often, perhaps generally, been held that the carrier may not stipulate as against his own negligence for a liability less than the real value of the article carried. This is on the ground of public-policy. As held in Graham v. Davis, 4 Ohio St., 368, 377, a case involving the liability of a common carrier who claimed exemption by reason of a special-contract with the shipper: “One of the strongest motives for the faithful performance of these duties is found in the pecuniary responsibility which the carrier incurs for the failure. It induces him to furnish safe and suitable equipments, and to employ careful and competent agents. A contract, therefore, with-one to relieve him from any part of this responsibility reaches beyond the person with whom he contracts,, and affects all who place their persons or property-in his custody.” But, as to carriers of passengers,, where the baggage is carried as a mere incident, with the right on the part of the carrier to rely upon the-implied representation that the package offered as baggage contains that only, it is a fraud upon the-carrier for the passenger to palm off on to him, under the guise of baggage, that which is not baggage, but is merchandise and that only. And it follows, also, that, as to such merchandise the minds of the-parties have not met and there is no contract respecting it. The carrier has not agreed to receive and carry that merchandise. The relation that existed cannot, with any degree of accuracy, be defined as that of a, bailee for hire. Such relation can be established only by agreement, and cannot be created without knowledge and consent on the part of the carrier. Here there was no hire paid; no consent, no knowledge. It results that the bailment was for the exclusive benefit of the passenger. The property was placed in the possession of the Company for his convenience- and his only, and that too, by reason of his unfair and fraudulent concealment; and no just principle can be invoked which will make the carrier liable for loss, save only for his gross neglect of duty, that reckless disregard of the rights of others which amounts to willfulness. He may not willfully destroy or injure the property of another even though it came into his charge by unfair means. He is thus made a bailee, but such Avithout hire, and without consent, and he cannot be held, as in the other case, for the value of the article either as insurer or on the ground of mere negligence. And this we take it is the difference betAveen the class of cases Avhere a carrier has undertaken to limit liability by giving notice that he will not be responsible beyond a certain amount, for property he has agreed to carry, and those cases where a deceit as to nature and value has been practiced upon the carrier respecting property which he never agreed to carry. A case illustrative of the application of the principle governing the first class alluded to is Express Company v. Backman, 28 Ohio St., 144, and one illustrating the second class is First Nat’l Bank v. Railroad Company, 20 Ohio St., 259. There can . be no rule of public policy requiring a carrier of passengers to be responsible for the value of property injured by ordinary negligence while in his possession where that possession has been had, not by reason of any contract, but by fraudulent concealment and misrepresentation. In the affairs of life negligence is less pernicious than deceit. Cheating cannot have a preferred claim upon justice even as against negligence. Taking it by and large, a careless person is less dangerous to his fellows than a cheat, and it is not wise to carry the condemnation of negligence to the point of rewarding fraudulent concealment, especially where the result would work a gross injustice. Such concealment, in a case like the one at bar, enhances the risk of the carrier without, his knowledge. It exposes him to the hazard of incurring a different liability than that he has agreed to assume, a liability to which there is practically no limit. If the carrier may be held, under such circumstances, for from four thousand to five thousand dollars, as in this case, that liability might, under-circumstances differing only as to value, be swelled to hundreds of thousands of dollars. It is but just to hold, as we do, that where merchandise is shipped under circumstances such as the evidence discloses, in this case, it is, as to the connecting road, shipped at the owner’s risk. We need not discuss the liability of the Kanawha & Michigan road, had the accident occurred on its line, for we have a different case. Thebaggageman was the employe, the agent, the alter ego, so to speak, of that company at Glousier. We have found that, respecting the subject matter of this contention, he was not the agent of the plaintiff in error. Nor can the fact that extra fare was paid Jones for excess baggage'to Bremen make any possible difference. That transaction, on its face, related to overweight on baggage, and that only.

We do not wish to be understood as finding that: there was actual concealment and deceit by Burdick in his dealing with Jones respecting the checking' of the trunks. There may or may not have been; but in either event the result worked what would prove-a fraud on the plaintiff in error should it be held liable for the loss of the jewelry.

Our conclusion respecting the question of liability of a carrier of passengers for loss of merchandise, in the absence of knowledge and of contract, is, we believe, fully sustained by the case of First N. B. v. M. & C. R. R. Co., supra. Authorities bearing with more: or less force on the question are the following: Batson v. Donovan, 4 B. & A., 21; G. N. R. Co. v. Shepherd, 8 Ex., 30; B. & B. Ry. Co. v. Keys, 9 H. of L. Cases, 556; Cahill v. L. & N. W. Ry. Co., 100 E. C. L., 154; Macrow v. G. W. Ry. Co., L. R. 6 Q. B., 612; 2 Kent’s Com., 603; Story on Bail, Section 565; Relf v. Rapp, 3 W. & S., 21; Hawkins v. Hoffman, 6 Hill, 586; Collins v. B. & M. Rd., 10 Cush., 506; Stimson v. C. R. Rd. Co., supra; Dunlap v. I. S. Co., 98 Mass., 371; Connolly v. Warren, 106 Mass., 146: Ailing v. B. & A. Rd., 126 Mass., 121; Blumantle v. F. Rd. Co., 127 Mass., 322; C. & A. Rd. Co. v. Thompson, 19 Ill., 578; M. C. R. R. Co. v. Carrow, 73 Ill., 348; Pfister v. C. P. R. Co., 70 Cal., 169; Humphreys v. Perry, 148 U. S., 627.

We are aware that there are decisions to the effect that a common carrier is liable for the value of a passenger’s property lost while in his custody by reason of negligence even though the property is merchandise checked under the guise of baggage, and its true character unknown to the carrier. Penn. Co. v. Miller & Co., 35 Ohio St., 541, is a case of this kind. .The passenger was Miller & Company’s agent who had in his valise samples of merchandise belonging to them. The valise was checked at Bucyrus for Forest, to which point the agent had a ticket, nothing being said about what the valise contained. The passenger and valise landed at Forest about nine o’clock at night.. It was not called for and was placed in the warehouse of the company. During the night the warehouse was broken open and the valise stolen. It was alleged that the warehouse was insecure and not a safe or suitable'place to store property in. The holding, as expressed by the syllabus is, that the implied undertaking of the carrier to insure the safety of baggage does not extend to contents of a trunk consisting of samples of merchandise, but the carrier, by taking the property into his charge and putting it into the warehouse for safe keeping, assumes the relation to it of an ordinary bailee, and is bound to take such care of the property as a man of ordinary prudence would of his own under like circumstances. The assumption on which the ruling is based is that the carrier voluntarily took the property into its charge for safe keeping and therefore assumed the relation to it of an ordinary bailee. The fallacy of this is in assuming that the property which is thrust upon a carrier and accepted under a belief, induced by the deceit of the owner, that it is what the carrier has agreed to take, when it is not such, is in his possession voluntarily. As to the merchandise we think this assumption, for the reasons already stated, is not sound. It is on principle, in square conflict with First N. B. v. M. & C. Ry. Co., supra, and with T. & O. C. R. R. Co. v. B. & B. Co., supra, and after mature reflection, a majority of the court has concluded the case, as to this proposition, should be overruled.

It is argued that the negligence of the engineer of the helping engine which caused the collision and the loss was gross. What distinctions as to negligence exist in law has been a subject of much discussion resulting in widely differing conclusions. Into this discussion we do not need to enter. So far as appears in the record the Company had exercised due care in the selection of an engineer, and he was provided with an accurate time-piece, and undertook to do his duty in its use, but, by one of those strange accidents likely to occur to any one, and involving an inadvertence, but no moral fault, he misread the time on the face of the watch. The mistake, while such as would make the Company liable for injury to a passenger, was an innocent one so far as the motive was concerned. In this sense it was not gross, nor did it involve such heedlessness as to indicate a reckless or wilful disregard of the rights of others. In no view¡ as we think, could such negligence give a right of action against the Company to one whose property-was on the train not by virtue of any contract, but through the deceit and wrong-doing of the owner.

The judgments below will be reversed, and, the facts respecting propositions vital to the case of the plaintiff below being conceded, final judgment will be here entered for plaintiff in error.

Reversed.

Williams and Minshall, JJ., dissent.