author: Johnson, J.

text:
    The Gem City Acetylene Generator Company v. Coblentz et al.

      Proceeding brought under Sections 6343 and 6344, Revised Statutes— To set aside fraudulent transfer of real estate — Must conform to Section 3019, Revised Statutes — Action must be in county where realty situated.

    1. A proceeding brought under Sections '6343 and 6344, Revised Statutes, to set aside a transfer of real estate as in fraud of creditors and to obtain the relief provided therein, is for the recovery of real property or of an estate or interest therein within the meaning of Section 5019, Revised Statutes.
    2. When the entire property described in the petition and sought to be recovered in such proceeding is real estate, all of which is situated in one county, the action must be brought in that county and summons may be issued to any other county for the defendants.
    No. 12686
    Decided June 5, 1912.
    Error to the Circuit Court of Darke county.
    This was an action brought in the common pleas court of Darke county by the plaintiff in error to set aside a deed by the defendants, William S. Coblentz, and wife, to the defendant, Isaac Miller, which conveyed certain real estate situate in Darke county. The petition in the case alleged that the defendant, William S. Coblentz, was indebted to the plaintiff in the sum of $33,720, and that said defendant not having sufficient other property to pay his debt to plaintiff, and being the owner of the real estate described, conveyed it to the defendant, Miller, with intent to defraud his creditors ; that said conveyance left the defendant, Coblentz, bankrupt and unable to pay his debts; that full consideration for the said premises had not been paid, and that the conveyance was made in contemplation of insolvency, and with a design to prefer said Miller as a creditor to the exclusion of his other creditors, and that the fact of the insolvency of Coblentz was well known to Miller at the time, and that said Miller knew that by accepting said conveyance he would become a preferred creditor to the exclusion of plaintiff and other creditors of said Coblentz, and prays that the said deed be set aside, and a trustee appointed in accordance witfi the provisions of the statute. None of the defendants resided in Darke county, and none of them was served with summons ■ in that county, but summonses were issued to Franklin county and Preble county, respectively, and the defendants served in that way. Defendants filed a motion to quash the service for want of jurisdiction. This motion was sustained by, the common pleas court, it being stated in the entry that the court finds that none of the defendants herein resides or has been summoned in Darke county, and that this court has no jurisdiction over the person of any of the said defendants. On error to the .circuit court the judgment of dismissal was affirmed, and this proceeding- is to reverse the judgments of the courts below.

      Messrs. E. H. & R. A. Kerr, for plaintiff in error.
    It will be noticed that the only question to be determined in this court is as to whether or not, where land is conveyed for the purpose of defrauding creditors, an action to set aside such conveyance can be maintained in the county where the land lies or whether' it must be brought in the county where either the grantor or grantee resides .at the time of the bringing of the action, where such residence is different from thát of the location of the land. We contend that the action is properly brought in the county where the land is situate; it is the land that we seek to reach, we are seeking no personal claim against any of the defendants, and we are only seeking to clear the title to the land which, if the sale be fraudulent, we had a right to sell, independent of this action. Quarl v. Abbett, 102 Ind., 233, 1 N. E. Rep., 476; 2 Moore on Fraudulent Conveyances, 812, 881; Adams v. Cowles, 95 Mo., 501, 6 Am. St., 74; Hunt v. Dean, 91 Minn., 96; Moody et al. v. Gay et al., 15 Gray, 457; Smith v. Barr, 76 Minn., 513; Genin v. Grier, 10 Ohio, 210; 2 Bates’ Pleading, 1682; Leaf v. Marriott, 29 W. L. B., 225; Mellen v. Moline Malleable Iron Works, 131 U. S., 352, 33 L. Ed., 178; Arndt et al. v. Griggs, 134 U. S., 316, 33 L. Ed., 918; Bates’ Fed. Eq. Procedure, Sec. 75.

      Mr. Robert R. Nevin and Mr. Allen C. McDonald, for defendants in error.
    The plaintiff in error company has no lien by virtue of any instrument or by judgment or otherwise, or any incumbrance or charge, which, it is submitted, would enable it to bring its action in Darke county. It is simply a general creditor of the defendant in error, Coblentz, and what it seeks to do is, in effect, to set up a creditor’s bill. In this respect the case of Butler v. Birkey, 13 Ohio St., 514, directly applies. Kraner v. Forrester, 1 Ohio Dec., 619.
    Cases involving creditors’ bills and fraudulent conveyances are treated upon in 5 Ency. PI. & Pr., 438, where the law is given upon this subject. Beach v. Hodgdon, 66 Cal., 187; Coleman & Quillian v. Franklin, 26 Ga., 368; Lehmberg v. Biberstein, 51 Tex., 457; Vandever v. Freeman, 20 Tex., 336; Johnson v. Gibson, 116 Ill., 294; Genin v. Grier, 10 Ohio, 210.
    Some further Ohio cases which may be cited in opposition to plaintiff’s right to institute its action in Darke county, are those of Howard v. Levering, 8 C. C, 614, and Chapman v. Bolton Steel Co., 4 C. C, 242, which involve real estate, and hold in effect that where equitable relief is the basis of the action, jurisdiction is personal and not local.
   Johnson, J.

The judgments of the courts below were based on the view that a proceeding under Sections 6343 and 6344, Revised Statutes, to set aside a deed for fraud and secure the relief provided by those sections, must be brought in the county where a defendant resides or may be summoned, and that such an action is not one of those mentioned in Section 5019, Revised Statutes, which must be brought in the county in which the subject of the action is situated.

The causes so enumerated in that section are:

1. For the recovery of real property, or of an estate or interest therein.

2. For the partition of real property.

3. For the sale of real property under a mortgage, lien or other incumbrance or charge.

After providing in the succeeding sections for some exceptions, none of which affect the question made here, it is enacted in Section 5028, that every other action must be brought in the county in which a defendant resides or may be summoned, except actions against an executor, etc.

This cause is not one of those mentioned in paragraphs 2 and 3 of Section 5019 for the partition of real property or for the sale of real property under a mortgage lien or other incumbrance or charge. The lien or other incumbrance or charge referred to is manifestly one that exists before the commencement of the action.

Therefore, the inquiry is, is it an action for the recovery of real property or of an estate or interest therein ? The proceeding referred to in that clause is not merely the law action of ejectment or forcible detainer, etc., but any action, legal or equitable, to fix an estate or interest in real estate. In Owens v. Hall, 13 Ohio St., 571, it was held that an action for specific performance of a contract for the sale of real estate may be brought either in the county where the land lies or in that where one of the defendants resides, and this because Section 5021, Revised Statutes, provides (as a special exception to Section 5019) that such action may be brought in the county where the defendants or any one of them resides.

Section 6343 provides: “Every sale, conveyance, transfer * * * in contemplation of insolvency and with a design to prefer one or more creditors to the exclusion in whole or in part of others, and every sale, conveyance, transfer * * * with intent to hinder, delay or defraud creditors, shall be declared void as to creditors of such debtor at the suit of any' creditor, and in any suit brought by any creditor or creditors of such debtor for the purpose of declaring ' such sale void, a receiver may be appointed who shall take charge,” etc., and further provides that the receiver shall administer the property for the equal benefit of the creditors including, those whose demands are unmatured.

The original act from which this Section 6343, Revised Statutes, is taken was passed April 6, 1859, and provided that after such transfer had been declared void by a court of competent jurisdiction the probate court of the proper county should, on application of any creditor, appoint an assignee who should proceed by due course of law to recover possession of all property so conveyed, and administer the same as in other cases of assignments for the benefit of creditors, and provided that the creditor instituting the suit should cause notice of the same to be published for four weeks, and that all creditors who should come into the action and secure a pro rata share of costs and expenses should be first entitled with the plaintiff to the benefits of such transfer. From time to time in the light of experience and to more effectively and directly accomplish its object, the legislature has amended the law. As in existence at the time of the beginning of this suit, it provided a more direct method of accomplishing its purposes than was provided in its earlier form. After the action has progressed to the point at which the court has declared the transfer to be void as to creditors, the same court then proceeds to appoint a receiver to take possession of the property and administer it in the manner and for the purposes defined. Under the act as it formerly stood, it might with some- force be claimed that the proceeding was preliminary, to the suit which was to be brought by the trustee, to be appointed by either of the courts in the manners provided, although even there the purpose was to secure and administer the property for the creditors under the law which provided that the fraudulent deed inured to the creditors’ benefit. But the statute as it stood at the beginning of this suit provided a method by which the property should be recovered in the pending case, and it would seem to be a proceeding in rem for the recovery of the real property for the benefit of the creditors of the grantor. The • direction of the statute is, that the transfer shall be declared to be void. So that the title to the real estate is directly, and not incidentally involved. The purpose of the plaintiff, it is true, is to secure the payment of his debt, but the setting aside of the fraudulent conveyance and the decree of the court that the conveyance is void, is the first and a necessary step. That having been accomplished in due process of law, the court itself lays hold of the property. In Acker et al. v. Leland et al., 96 N. Y., 383, it is held that an action brought to spt aside an assignment for the benefit of creditors on the ground that it was made to hinder, delay and defraud the assignor’s creditors, where the assigned property consists in part of real estate, «situate in the state, is a local action, and must be tried in the county where the real estate, or some portion thereof, is situated. The section of the New York code which applied in that case was similar to Section 5019, Revised Statutes of Ohio, and the court held that it was a proceeding affecting an estate in real property such as was required by that section to be brought in the county where the land is situated. In Hunt v. Dean, 91 Minn., 96, there was a proceeding to set aside certain deeds of real estate as a fraud upon creditors. In referring to the statute involved in that case, it is said: “By the enactment of Section 5183, it is provided that all actions for the recovery of real property, or of an estate or interest therein, shall be brought and tried in the county in which the subject of the action, or some part thereof, is situated.” And the court held in the syllabus: “An action to set aside certain deeds of real property situated in more than one county as a fraud upon creditors may be brought in either county under the provisions of Section 5183.” The same propositions are laid down in Moore on Fraudulent Conveyances, page 881, Vol. 2, and in 20 Cyc., 710. The case of Butler et al. v. Birkey et al., 13 Ohio St., 514, relied on by the defendant in error, was a creditor’s bill, filed under Section 458 of the Code, now Section 5464, Revised Statutes, by a judgment creditor. The suit was brought before the passage of the act, April, 1859, which is now Section 6343. No landed interests were sought to be charged in that case, nor was any action of the court asked in relation to any interests in lands. It was a proceeding in personam to determine equities in personal property. The court, in the opinion, declares that it does not decide the question of venue in a case where landed interests are sought to be charged, although the judge writing the opinion expressed his own views upon that subject as to a creditor’s bill under Section 458 aforesaid. It would seem to be clear that to get the full benefit of this statute, which is essentially remedial in its character and should be liberally construed to accomplish its object, the creditor should have the right to bring the suit in the county where the land lies. If compelled to go to other counties, because the defendants did not reside or could not be served in the county where the land lies, the creditor would not be protected against a further conveyance to a bona fide buyer for the suit in the other county would not be notice. Rules concerning constructive notice by Us pendens have always been regarded by the courts as hardships in their application to bona fide purchasers for value. Section 5052, Revised Statutes, provides when summons has been served, or publication made, the action is. pending so as to charge third persons with notice of its pendency, and while pending no interest can be charged by third persons in the subject-matter as against the plaintiff’s title, but that section relates only to the 'subject-matter which is within the jurisdiction of the court, and it was held in Benton et al. v. Shafer, 47 Ohio St., 127, that a mortgagee of real property, not part of an entire tract, situate in more than one county will not be charged with constructive notice of an action for the recovery of such property pending in a county other than that in which the property is situated. The object of the legislature in the passage of the original act in 1859 (and of the amendments which have since been passed), was to assist creditors to defeat the fraudulent schemes and devices of dishonest debtors, and to furnish a speedy and effective mode of accomplishing this end. It is not necessary that the creditor should first reduce his claim to judgment which ivas necessary before the act was passed. It is not necessary even that his claim should be a matured claim. The ends of justice require that the court should not put such a narrow construction on the legislation touching this subject, as will tend to defeat the object sought to be accomplished. The proceeding is a statutory one. It is not equitable to force the defendant to do some particular act enjoined upon him by a court of equity, but it immediately affects the property itself. We think that the proceeding authorized by Sections 6343 and 6344 is one for the recovery of real property, or of an estate or interest therein, and when the petition describes real estate situated entirely in one county and no other property is described in the petition as having been fraudulently conveyed, the action should be brought in the county where the land is situated.

For these reasons we think the motion to quash should have been overruled, and the judgments below will be reversed and the cause remanded for further proceedings according to law.

Judgments reversed.

Shauck, Donahue and O’Hara, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Behm v. The Cincinnati, Dayton & Toledo Traction Company.

      Suit to recover for personal injury — Plaintiff charges negligence of defendant — Defendant alleges negligence of plaintiff — Court’s charge to jury — Latter may consider both allegations of negligence — •Law of pleadings.

    1. Where, in a suit to recover for personal injury, negligence of the defendant is charged in the petition which is denied by the answer, and it is in that pleading averred that whatever injuries plaintiff received were caused by his own negligence, which allegation is denied by the reply, and evidence is given at the trial tending to support the claim of each party, it is not error for the court, after stating to the jury the issues definitely made by the- pleadings, and as part of the charge wherein the law generally applicable is accurately stated, to charge that: “The other issue of fact for you to determine is as to whether or not plaintiff himself by his own acts (the alleged negligence which the defendant sets up) contributed to the injury he received.”
    2. Nor is it error for the court, further charging the jury, to say: “And if you find both that the Company was negligent, that the negligence was the proximate cause, but if you find also that the plaintiff by his own negligence contributed to the injuries he received, then, too, you should find in favor of this defendant Company.”
    3. Nor is such charge, as' a whole, calculated to mislead the jury, or in any way work prejudice to the defendant.
    No. 13258
    Decided June 5, 1912.
    Error to the Circuit Court of Butler county.
    The action in the common pleas of Butler was by Behm, plaintiff in error, against the Traction Company to recover for injuries alleged to have been caused by the negligent starting of a car from which plaintiff as a passenger was attempting to alight, by which he was thrown to the -ground and seriously injured. The answer, after admitting defendant’s corporate capacity, denied generally and specifically each and every other allegation of the petition. It further averred that if plaintiff was a passenger and was injured as the petition alleged, the same was caused by the negligence of the plaintiff; that the plaintiff alighted from the car while the same was in motion and running at a high rate of speed, and without waiting for the same to come to a stop, and whatever injury plaintiff received was caused by his own act in leaving the car while the same was in motion. The reply denied that plaintiff was guilty of any negligence or contributory negligence in the premises, and specifically denied all other new matter in the answer.
    At the trial evidence was given by the plaintiff tending to support his claim of negligence of defendant’s agents in charge of the car, and that his injuries were caused by such negligence. Evidence was given by the defendant tending to support the charge of negligence on the part of the plaintiff as alleged, and finally by the plaintiff tending to rebut the allegations of negligence charged against him as set up in the answer. The jury returned a verdict for the plaintiff, and judgment was entered thereon by the trial court. ,This judgment was reversed by the circuit court, and the plaintiff below now seeks a reversal of the circuit court judgment and an affirmance of that of the common pleas.

      Mr. C. C. Donley and Messrs. Andrews, Harlan & Andrews, for plaintiff in error.

      Mr. W. C. Shepherd, for defendant in error.
   Spear, J.

The error found by the circuit court in the charge and for which the judgment was reversed was that the trial court erred in charging the doctrine of contributory negligence. We are of opinion that there is no error in the charge in this respect. The initial proposition in the charge as to plaintiff's negligence complained of is this: “The other issue of fact for your determination is 'as to whether or not he himself, by his own acts (the alleged negligence which the defendant sets up), contributed to the injury he received.” The issue as to negligence, or lack of it on the part of plaintiff, was squarely in the case by the pleadings. The defendant alleged it; the plaintiff denied it. Evidence was given by each party bearing upon it. It therefore became the duty of the court to instruct upon that aspect of the case. The testimony as to the incident showed that it was possible that each party was negligent in respect to bringing about the accident, and if the jury should find that to be the fact, plaintiff was not entitled to a verdict. That point was covered in the charge adequately, and left no opportunity for misapprehension oh the part of the jury. If the plaintiff was negligent and that negligence,-joined with that of the Company, caused the accident, it was quite immaterial what term the learned trial judge applied to it. The substance being properly charged the mere form is immaterial. Covering the precise point the judge said to the jury: “And if you find both that the Company was negligent, that the negligence was the proximate cause, but if you find also that the plaintiff by his own negligence contributed to the injuries he received, then, too, you should find in favor of this defendant Company; or if you find that it was an accident in the purest sense of the word, and nobody was to blame for the injuries which this man received, then you should find in favor of the defendant.” This, in very brief form, covered all phases of the situation as shown by the evidence, and we think is not open to exception. It follows that the judgment of the circuit court will be reversed and that of the court of common pleas affirmed.

This conclusion is not inconsistent with the holding of the court in either Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1, or Cincinnati Traction Co. v. Stephens, 75 Ohio St., 171, as in each of those cases there was neither allegation charging negligence against the plaintiff nor .evidence tending to prove such negligence. The conclusion is also directly supported by the late case of Glass v. The Wm. Heffron Co., ante, 70.

Reversed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


author: Davis, C. J.

text:
    Keckley et al., Executors, v. The Coshocton Glass Company. Gainor v. The Coshocton Glass Company.

      Life insurance policy — Not merely a contract of indemnity — Stockholder insured for benefit of corporation — Corporation has an insurable interest, when — Legal representatives of insured estopped from denying insurable interest, when — Insurer pays money into court — Claimants cannot deny insurable interest— Insured may assign instirance — Sections 9393^9396, General Code.

    1. A life insurance policy is not -merely a contract of indemnity. It is a contract to pay to the beneficiary a sum certain in the event of death; and if the contract was valid in its inception and so continues until its maturity, the beneficiary is entitled to the whole of the stipulated sum.
    2. Where a person is the owner of a large portion of the stock of a corporation, and by, reason of his skill and experience he is largely relied upon to make the business of the corporation a success, and when, in borrowing money of banks and in dealing with creditors, and in inducing other persons to buy stock in such corporation, he represents that he has insured his life for the benefit of the corporation and that the policies therefor are assets of the corporation, such facts disclose an insurable interest in the corporation; and such insured person and his legal representatives are estopped from claiming that such policies are not based upon an insurable interest, or that the amounts due thereon do not belong to the corporation.
    3. Where a life insurance company makes no defense and pays the amount of its policy into court to -abide the judgment of the court as between conflicting claimants,- parties claiming an interest in the fund will not be allowed to object that the beneficiary named in the policy had no insurable interest.
    4. One who has obtained a valid insurance upon his life, may dispose of it as he sees fit, in the absence of prohibitory legislation or contract stipulations. It is immaterial, in such case, that the assignee has no insurable interest. Eckel v. Renner, 41 Ohio St., 232, approved and followed.

      5. Revised Statutes, Section 3628 (General Code, Sections 9393, 9394, 9395 and 9396) does not prohibit a person from insuring his own life for the benefit of persons other than his wife and children.
    Nos. 12729 and 12730
    Decided June 5, 1912.
    Error to Circuit Court of Coshocton county.
    The defendant in error, The Coshocton Glass Company, is a corporation, and at the time of the issuance of the life insurance policies which are the subject of these actions, Thomas J. Gainor and two others owned the controlling interest in the corporation. Gainor was a man of extensive experience and skill in the glass manufacturing and bottle blowing business; and to him especially all others interested in the company looked for its success. In getting the company established in business it was a large borrower of money and it also sold preferred stock to raise working capital. In order to secure against loss or failure of the enterprise and to maintain the credit of the company, Gainor and his two associates, holding the common stock and the control of the corporation, each agreed to take out insurance on his own life in the sum of $10,000 for the benefit of The Coshocton Glass Company.
    On or about August 26, 1904, Gainor applied for insurance in the amount of $5,000 for the benefit of his wife, Mary M. Gainor. On that application the insurance company issued two policies of $5,000 each on the life of Gainor, naming his wife, Mary M. Gainor, as the beneficiary. When the agent of the insurance company came to deliver these policies Gainor refused to accept one of them, which is the policy involved in the case No. 12730 above named, and the agent took the policy back to his office and retained it until a later date as stated hereinafter.
    On September 13, 1904, the three men, Gainor and his associates as before stated, took out policies each on his own life in the sum of $10,000, for the benefit of The Coshocton Glass Company. Gainor inquired of the agent of the insurance company whether the $5,000 policy naming Mary M. Gainor as beneficiary and which had been refused, could not be assigned to The Coshocton Glass Company; and being informed that it could be so assigned, he thereupon made application for a policy for $5,000, naming The Coshocton Glass Company as beneficiary. Upon that application the policy involved in case No. 12729 and the one involved in case No. 12730 were both delivered to the glass company, with the agreement that the latter policy would be assigned to the glass company and that the company should be the beneficiary therein. The written assignment of the last mentioned policy was not made until November 16, 1906.
    The Coshocton Glass Company paid the first premium on each of said policies and also all subsequent premiums; and Gainor represented to creditors of the glass company and to banks from which he was seeking to and did procure loans for said company, and to persons whom he sought to induce and did induce to become purchasers of stock in said company, that both of said policies of insurance on his life belonged to and were assets of said glass company.

      In January, 1906, Gainor sold all of his stock and interest in The Coshocton Glass Company, but continued in its employ until September 1, 1906, when he resigned, and from that time he had no connection whatever with the company. Gainor died testate on April 11, 1908. The insurance company refused payment on account of conflicting claimants; and The Coshocton Glass Company having brought suits to enforce payment of the policies to it, the insurance company was permitted to pay the full amount of each policy into court and be discharged. These suits, therefore, remained as between The Coshocton Glass Company and the other defendants, to determine the respective rights of the glass company and the executors of Thomas J. Gainor to the $5,000 paid into court on the one policy, and the respective rights of the glass company and Mary M. Gainor to the $5,000 paid into court on the other policy. In case No. 12730, the circuit court, in its findings of fact, also found: “That at the time said Mary M. Gainor executed the assignment of November 16, 1906, there were no false or fraudulent representations made to said defendant, Mary M. Gainor, by either Hippolyt Liewer, Charles A. Liewer or the plaintiff, or by anyone representing them or either of them, and that in executing said assignment, said defendant, Mary M. Gainor, did not rely upon false or fraudulent representations made either by said Liewers or said plaintiff, or anyone representing them, or either of them.”
    The facts above stated were found by the court of common pleas in case No. 12729, and by the circuit court in case No. 12730; and judgment was rendered against the executors of Thomas J. Gainor and Mary M. Gainor in both the court of common pleas and the circuit court. These proceedings are to reverse the judgments below.

      Messrs. Flory & Flory, for plaintiffs in error.
    Passing, as immaterial in the present inquiry, the question of the validity of a policy taken out by a corporation on' the life of one of its servants while in its employ, we insist that if the finding of the court is correct — that these policies were to secure the company against any loss that might result to it by reason of the loss of services of Gainor by his death, that this fact, as with a policy taken out or assigned for the benefit of a creditor, gave the glass company only such interest in the policies as would indemnify it against any loss it might sustain by reason of the death of Gainor while in its employ, and that as soon as he ceased to be in its employ, its interest in the policies ceased to exist, except as to the amount necessary to repay said company for any premiums it may have paid on said policies — the balance to go to Mrs. Gainor as the beneficiary named in one policy and to Gainor’s estate under the other policy. Ryan v. Rothweiler, 50 Ohio St., 595; Manhattan Life Ins. Co. v. Smith, 44 Ohio St., 157; Fraternal Mut. Ins. Co. v. Applegate, 7 Ohio St., 292.
    The whole subject of insurance, embracing the organization and powers of insurance companies and right of contract concerning insurance and for whose benefit insurance may be taken out, is prescribed and regulated by statute in Ohio, and this section of the statute was enacted to give the power therein prescribed and no greater.. The limitation in Section 3628 as to whose benefit insurance may be effected is no broader than the limitation contained in Section 3630, and under this latter section it has been repeatedly held that insurance cannot be taken out or assigned to persons other than members of the insured’s family. National Mut. Aid Assn. v. Gonser, 43 Ohio St., 1; State, ex rel., v. Peoples’, etc., Assn., 42 Ohio St., 579.
    As Gainor had severed all connection with the glass company long before his death, the only interest it had in the policies was to receive out of the money the amounts it paid for premiums, and interest thereon. This makes the company whole and free from loss and gives to Gainor’s wife and estate what belongs to them as their loss and which they are entitled to under the statute allowing the taking out of insurance in their favor. In the meantime — while the insurable interest existed, and while the company could have lost by Gainor’s death — it had full protection.
    This is the rule laid down in cases cited in this brief. It is just, and avoids what would amount to a gambling speculation on Gainor’s life. The law on these points is definitely settled. Evans v. Moore, 28 C. C., 1; Schott & Sons Co. v. Insurance Co., 7 N. P., N. S., 548; Security Mut. Life Ins. Co. v. Schott, 11 C. C., N. S., 401, 30 C. C., 656; Warnock v. Davis, 104 U. S., 775; Crotty v. Insurance Co., 144 U. S., 621; Mut. Life Ins. Co. v. Lane, 151 Fed. Rep., 276; Mut. Life Ins. Co. v. Richards, 99 Mo. App., 88, 72 S. W. Rep., 487;
      Strode v. Meyers Bros. Drug Co., 101 Mo. App., 627, 74 S. W. Rep., 379; Quinn v. Catholic Knights, 99 Tenn., 80, 41 S. W. Rep., 343; Norris v. Georgia Loan Co., 109 Ga., 12, 34 S. E. Rep., 378; Roller v. Moore, 86 Va., 512; Tate v. Building Assn., 97 Va., 74, 33 S. E. Rep., 382; Trinity College v. Insurance Co., 113 N. Car., 244, 18 S. E. Rep., 175; Widaman v. Hubbard, 88 Fed. Rep., 806; Cammack v. Lewis, 15 Wall., 643; Cheeves v. Anders, 87 Tex., 287, 28 S. W. Rep., 274; Mayher v. Manhattan Life Ins. Co., 87 Tex., 169, 27 S. W. Rep., 124; Mut. Life Ins. Co. v. Blodgett, 8 Tex. Civ. App., 45, 27 S. W. Rep., 286; Weigelman v. Bronger, 96 Ky., 132, 28 S. W. Rep., 334; Beard v. Sharp, 100 Ky., 606, 38 S. W. Rep., 1057; Riner v. Riner, 166 Pa. St., 617, 31 Atl. Rep., 347; Exchange Bank v. Loh, 104 Ga., 446, 31 S. E. Rep., 459; Irons v, U. S. Life Ins. Co., 33 Ky. L. Rep., 46, 108 S. W. Rep., 904; Bendet v. Ellis, 120 Tenn., 277, 111 S. W. Rep., 795; Dugger v. Insurance Co., 81 S. W. Rep., 335; Bramblett v. Hargis Exrx., 29 Ky. L. Rep., 610, 94 S. W. Rep., 20; Wilton v. Insurance Co., 34 Tex. Civ. App., 156, 78 S. W. Rep., 403; 1 Cooley Briefs on Insurance, 270, 274, 278, 298, 300, 301, 302, 308, 309, 315.
    The questions here involved are: Who had the beneficial interest in the continuance of the life of Thomas J. Gainor at the time that the assignments were made and at his death, so as to be entitled to receive the money in compensation for the loss of that life? And what was the extent of such interest in each party? This distinction is the basis of the leading cases of: Lanouette v. Laplante, 67 N. H., 118, 36 Atl. Rep., 981; Smith v. Agnew 137 Ky., 83, 122 S. W. Rep., 231.

      Messrs. Pomerene & Pomerene, for defendant in error.
    Is an insurable interest necessary where one causes his life to be insured for the benefit of a stranger? By' “stranger” we mean one who neither by blood nor contractual relations has a legal insurable interest in the life of the insured. We do not think or admit that the glass company was a stranger to Mr. Gainor.
    The general rule is that, although a person without legal insurable interest in the life of another may not procure insurance upon such life, yet the person insured, if there is no fraud practiced and the transaction is not for the purpose of covering a wager or gamble, may himself contract directly with the insurer and have the policy made payable to whomsoever he will, regardless of the party’s insurable interest. Ryan v. Rothweiler, 50 Ohio St., 601; 1 May on Insurance (4 ed.), Sec. 75&; Bloomington Mut. Life Ben. Assn. v. Blue, 120 Ill., 121, 11 N. E. Rep., 331; Martin v. Stubbings, 126. Ill., 387, 9 Am. St. Rep., 620; Kerr on Insurance (1902), 679, 680.
    There is no reason of public policy why one who procures insurance on his own life should not make the benefit payable to another,, without regard to whether the latter has any insurable interest. Milner v. Bowman, 119 Ind., 448, 21 N. E. Rep., 1094; Langford v. Freeman, 60 Ind., 46; Campbell v. New Eng. Mut. Life Ins. Co., 98 Mass., 381; Scott v. Dickson, 108 Pa. St., 6, 56 Am. Rep., 192; Hill v. United Life Ins. Assn., 154 Pa. St., 29, 35 Am. St., 807; Fairchild v. Northeastern Mut. Life Assn., 51 Vt., 613; Aetna Life Ins. Co. v. France, 94 U. S., 561.
    In the absence of bad faith or fraud, the policy may be made payable to anyone without regard to insurable interest, and recovery may be had on the policy in an action brought by the beneficiary without proof of insurable interest. Allen v. Hartford Life Ins. Co., 72 Conn., 693, 45 Atl. Rep., 955; Albert v. Mut. Life Ins. Co., 122 N. Car., 92, 65 Am. St., 693; Van Cleve v. Union Cas. & S. Co., 82 Mo. App., 668; Ashford v. Met. Life Ins. Co., 80 Mo. App., 638; Croswell v. Conn. Indem. Assn., 51 S. Car., 103, 28 S. E. Rep., 200; Goodrich v. Treat, 3 Col., 408; Classey v. Met. Life Ins. Co., 84 Hun, 350; Tucker v. Mut. Ben. Life Ins. Co., 50 Hun, 50, 121 N. Y., 718, 24 N. E. Rep., 1102; Prudential Ins. Co. v. Hunn, 21 Ind. App., 525, 69 Am. St., 380; Olmstead v. Keyes, 85 N. Y., 593; Hess’ Admr. v. Sengenfelter, 32 Ky. L. Rep., 225, 105 S. W. Rep., 476; Vance on Insurance, Sec. 49; Heinlein v. Imperial Life Ins. Co., 101 Mich., 250, 45 Am. St., 409; Morrell v. Trenton Mut., etc., Ins. Co., 10 Cush., 282, 57 Am. Dec., 92; Conn. Mut. Life Ins. Co. v. Schaefer, 94 U. S., 457; 1 May on Insurance (4 ed.), Sec. 112; Bliss on Life Insurance, Sec. 76; 2 Beach on Insurance, Sec. 861; 2 Joyce on Insurance, Sec. 729; Union Fraternal League v. Walton, 109 Ga., 1, 77 Am. St., 350; N. W. Masonic Aid Assn. v. Jones, 154 Pa. St., 99, 35 Am. St., 810;
      Rupp v. Western Life Indem. Co., 138 Ky., 18, 29 L. R. A., N. S., 675.
    Did the glass company have an insurable interest in the life of Gainor at the time the policy was issued? This question involves the right of a corporation to insure the life of an officer or employe in whose life it has a special and valuable interest. As we contend, the question is one of fact as well as of law, and that the right of a corporation to insure the life of an officer of the corporation or an employe in its service depends upon conditions and the good faith of the transaction by which the insurance was obtained. Elliott on Insurance, Sec. 57; Warnock v. Davis, 104 U. S., 775; Bliss on Life Insurance, Sec. 21; Trenton, etc., Ins. Co. v. Johnson, 24 N. J. L. (4 Zab.), 586; State v. Willett, 171 Ind., 296, 86 N. E. Rep., 68; Appeal of Corson’s Exr., 113 Pa. St., 446.
    Was the interest of the glass company an insurable one? Mechanicks Nat. Bank v. Comins, 72 N. H., 12, 101 Am. St, 650, 55 Atl. Rep., 191.
    If the glass company had an insurable interest in Gainor’s life at the time the policy was issued, did its interest therein lapse when the insurable interest ceased. We, of course, concede that when Mr. Gainor left the service of the glass company on September 1, 1906, the legal insurable interest of the company in his life terminated. But the policy having been valid at its issue and the interest of the glass company vesting at that time, did the interest of the company lapse when Gainor left the service? Elliott on Insurance, Sec. 19; 1 Joyce on Insurance, Secs. 25, 26; Nye v. Grand Lodge, 9 Ind. App., 131, 36 N. E. Rep., 429; Mut.

      Life Ins. Co. v. Allen, 138 Mass., 24; Rawls v. Am. Mut. Life Ins. Co., 27 N. Y., 282, 84 Am, Dec., 280; Sides v. Knickerbocker Life Ins. Co., 16 Fed. Rep., 650.
    The rule stated in general terms may be said to be that if a policy is valid at its inception, because based on an adequate insurable interest, the existence of such an interest at the maturity of the policy is unnecessary. While there are some courts holding differently, yet this rule has been endorsed by a large majority of them. 1 Cooley Briefs on Insurance, 311; 25 Cyc., 711; 2 Joyce on Insurance, Sec. 902; Elliott on Insurance, Sec. 60; Rawls v. Am. Mut. Life Ins. Co., 36 Barb., 357.
    A beneficiary in a life policy may recover after the death of the assured, though he has no pecuniary interest in the assured’s life. Am. Employers’ Liability Ins. Co. v. Barr, 68 Fed. Rep., 873, 32 U. S. App., 444; Langdon v. Union Mut. Life Ins. Co., 14 Fed. Rep., 272; Robinson v. U. S. Mut. Acc. Assn., 68 Fed. Rep., 825; Provident Life Ins. & Inv. Co. v. Baum, 29 Ind., 236; Pac. Mut. Life Ins. Co. v. Williams, 79 Tex., 633; Elliott on Insurance, Sec. 63.
    Can the executors of Gainor’s estate raise the question of lack of insurable interest if the insurance company does not? The authorities are not uniform in their holdings on this question, but a careful investigation of the authorities inclines us to the view that no one but the insurer is entitled to interpose the defense of lack of insurable interest in the beneficiary named in the policy. Chicago Title & Trust Co. v. Haxtun, 129 Ill. App., 626; Standard Life & Acci. Ins. Co. v. Catlin, 106 Mich., 138, 63 N. W. Rep., 897; Johnson v. Van Epps, 110 Ill., 552; Hosmer v. Welch, 107 Mich., 470, 65 N. W. Rep., 280; Groff v. Mut. Life Ins. Co., 92 Ill. App., 207; Diffenbach v. N. Y. Life Ins. Co., 61 Md., 370.
    Is an insurable interest necessary in the assignee of a valid life policy? Our investigation impresses us with the view that it is no longer necessary. The early adjudicated cases held that it was, the later ones hold that it is not. The tendency in business life has been to liberalize the rules governing life insurance and thus to broaden its scope. Elliott on Insurance, Sec. 63.
    This doctrine has been distinctly recognized in Ohio and in plain language. Eckel v. Renner, 41 Ohio St, 232; St. John v. Am. Mut. Life Ins. Co., 13 N. Y., 31, 64 Am. Dec., 529; Dixon v. Nat. Life Ins. Co., 168 Mass., 48, 46 N. E. Rep., 430; Clark v. Allen, 11 R. I., 439, 23 Am. Rep., 496.
    That a policy of life insurance issued to a person insured is a proper subject of sale and transfer, and is enforceable in the hands of an assignee, though he had no insurable interest in the life of the payee is distinctly held in Steinback v. Diepenbrock, 37 N. Y. Supp., 279, and supported by the following cases: Valton v. Assurance Co., 20 N. Y., 32; Hogle v. Guardian Life Ins. Co., 29 N. Y. Sup. Ct., 567; Palmer v. Merrill, 6 Cush., 282; Tateum v. Ross, 150 Mass., 440; Brown v. Greenfeld Life Assn., 172 Mass., 498; King v. Cram, 185 Mass., 103; Rittler v. Smith, 70 Md., 261, 16 Atl. Rep., 890; Souder v. Home Friendly Soc., 72 Md., 511, 20. Atl. Rep., 137; Robinson v. Hurst, 78 Md., 67, 44 Am. St., 266; Clogg v.
      McDaniel, 89 Md., 416, 43 Atl. Rep., 795; Bursinger v. Bank, 67 Wis., 75, 30 N. W. Rep., 290; Foster v. Gile, 50 Wis., 603, 7 N. W. Rep., 555, 8 N. W. Rep., 217; Amick v. Butler, 111 Ind., 578, 12 N. E. Rep., 518; Fitzgerald v. Flartford Life & Acc. Ins. Co., 56 Conn., 116, 7 Am. St., 288; Bowen v. Nat. Life Assn., 63 Conn., 460, 27 Atl. Rep., 1060; Farmers’ & Traders’ Bank v. Johnson, 118 la., 282, 91 N. W. Rep., 1074; Chamberlain v. Butler, 61 Neb., 730, 87 Am. St., 478.
   Davis, C. J.

The plaintiffs in error in both of these cases seem to have defended in the courts below, and to contend here, on the theory that a life insurance policy is merely a contract for indemnity, and therefore, upon the assumption that the policies were taken out to secure the company against loss of the services of Gainor by his death while connected with the company, if an insurable interest ever did exist in the company, it ceased when Gainor severed his connection with the company; and hence when Gainor died the proceeds of the one policy belonged to GainoCs estate and. of the other policy to Gainor’s wife, subject only to reimbursement to the glass company of ' the premiums paid thereon, with. interest. This contention seems to us to be untenable for several reasons.

In the first place, it is a misconception of the law to insist that a life insurance policy is a contract of indemnity merely. The later and better considered view is that a contract of life insurance is not a contract of indemnity, - but is a contract to pay to the beneficiary a certain sum of money in the event of death. 1 Joyce on Insurance, Sec. 26. So that, if the policy was valid in its inception and remained valid until its maturity, the beneficiary is entitled to the whole of the stipulated sum. Again, it does not appear that the purpose of the insurance was limited to indemnifying the company against loss by the death of Gainor while connected with the company. In the absence of any showing to the contrary, it may have been, and probably was in part, intended to secure the company against loss of his services at any time and in any way; and the courts below expressly find that Gainor represented that these policies belonged to, and were assets of, the company, and that he thereby obtained credit from banks and creditors and induced other persons to purchase stock in the company. From all this it may justly be inferred that such was the principal purpose to be effected by the insurance; and Gainor and his legal representatives would be estopped from claiming the contrary. And further, it thus distinctly appearing that the company had a direct pecuniary interest in the life and personal services of Gainor, the insurance for the benefit of the company was based on an insurable interest and was valid; and whether such insurable interest continued until the maturity of the policies or ceased before the maturity of the policy in the one case or ceased before the written assignment in the other case, is not material; for it has been held that the want of insurable interest is available only to the insurer, Chicago Title & Trust Co. v. Haxtun, 129 Ill. App., 626; Langford v. Freeman, 60 Ind., 55; and if that is too broad a statement of the law, there is abundant authority for holding that when the insurer has recognized the validity of the policy by paying the amount of the policy to the beneficiary, or into 'court, other parties claiming an interest in the fund cannot object on the ground that the beneficiary named in the policy had no insurable interest. Langford v. Freeman, 60 Ind., supra; Standard Life & Accident Ins. Co. v. Catlin, 106 Mich., 138; Mechanicks National Bank v., Comins, 72 N. H., 12; Hosmer v. Welch, 107 Mich., 470; Diffenbach & Roemer v. New York Life Ins. Co., 61 Md., 370; Groff v. Mutual Life Ins. Co., 92 Ill. App., 207; Johnson v. Van Epps, 110 Ill., 551; Grigsby v. Russell, 222 U. S., 149, per Holmes, J., p. 155. And see, also, Lewis v. Phoenix Mut. Life Ins. Co., 39 Conn., 100; Hurd v. Doty, 86 Wis., 1. In the cases at bar, the insurer has waived any defense and has paid the money into court.

It is earnestly contended with especial reference to case No. 12730, that the written assignment to the glass company of the policy for the benefit of Mrs. Gainor, having been made after Gainor left the service of the company, was made when no insurable interest could exist; and therefore that the company as an assignee without insurable interest could acquire no title. This contention not only ignores the fact that a policy of life insurance may. be assigned by parol and that this policy was assigned by parol, and, as found by the circuit court, without fraud or false representations on part of the assignee, Mrs. Gainor ratified the parol assignment by making the written one; but the fundamental proposition which is invoked to sustain the contention is not law in this state. In Eckel v. Renner, 41 Ohio St., 232, it was held that: “One who has obtainéd a valid insurance upon his own life may dispose of it as he may see fit in the absence of prohibitory legislation or contract stipulation. It is immaterial, in such case, that the assignee has no insurable interest.” That such is the prevailing rule, and that it is based upon sound reasons, is amply borne out by the citations in the briefs of counsel and in the opinion of the court, by Mr. Justice Holmes, in Grigsby v. Russell, 222 U. S., 149, in which case Russell v. Grigsby, 168 Fed. Rep., 577, cited on behalf of the plaintiff in error, was reversed.

We are referred to Revised Statutes, Section 3628 (now distributed in General Code, Sections 9393, 9394, 9395 and 9396) as “prohibitory legislation,” such as is referred to in Eckel v. Renner, supra. Wé do not so construe it. The right of a person to insure his own life for the benefit of persons other than his wife and children is not prohibited. The whole scope and purpose of the section is to define and protect the respective rights of the wife or widow, and children, and the creditors of the person upon whose life a policy has been issued.

For the reasons stated, it is apparent that the judgments below must be, and they accordingly are

Affirmed.

Spear, Shauck, Johnson and O’Hara, JJ., concur. Donahue, J., did not take part in the decision of these cases.


author: O’Hara, J.

text:
    The State of Ohio v. Huffman.

      Examination of prospective jurors upon voir dire — Hypothetical questions incompetent, when — Indictment for bribery — Inquiry as to whether juror will yield opinion in order to reach verdict— Incompetent — Evidence of conspiracy to fabricate defense— Competent in chief.

    1. The examination of persons called to act as jurors is limited to such matters as tend to disclose their qualifications in that regard, under the established provisions and rules of law, and hypothetical questions are not competent when, their evident purpose is to have the jurors indicate in advance what their decision will be under a certain state of the evidence or upon a certain state of facts.
    2. Therefore, upon a trial under an indictment for bribery, it is not competent to inquire of a prospective juror upon, his voir dire whether he will stand upon his opinion of not guilty, formed after due deliberation in the jury room, or will yield his opinion merely for the purpose of reaching a verdict in the case.
    3. Evidence which tends to show a conspiracy on the part of the defendant and others to fabricate a defense to an indictment for bribery, is competent in chief. The fact that such evidence is of a circumstantial nature and not direct, does not render it incompetent, where it otherwise conforms to the established rules of evidence in cases of conspiracy.
    No. 13625
    Decided June 27, 1912.
    Exceptions by the Attorney General and Prosecuting Attorney to decisions of the Court of Common Pleas of Franklin county.
    The case is stated in the opinion.

      Mr. Timothy S. Hogan, attorney general; Mr. Edward C. Turner, prosecuting attorney, and Mr. W. E. King, assistant prosecuting attorney, for the exceptions.

      The first ground of error is that the court erred in refusing to sustain for cause the challenge of the state to Juror Efau, who, upon his voir dire examination, testified that he was prejudiced against private detectives and clearly showed that he was prejudiced against their testimony. Palmer v. State, 42 Ohio St., 596.
    The second ground of objection is that the court erred in permitting the defendant upon voir dire examination of the jury to inquire of each juror whether he would stand upon his opinion of not guilty, or would yield his opinion merely for the purpose of reaching a verdict in the case. People v. Warner, 147 Cal., 546; Ryan v. State, 115 Wis., 488; Hughes v. State, 109 Wis., 398; 1 Thompson on Trials (2 ed.), Sec. 102.
    The third and fourth grounds of error complained of are, third: The court erred in permitting the defendant to inquire of the witness Smiley if he did not testify as a witness called by the state in the case of People of the State of Illinois v. August M. Unger and Francis Wayland Brown; and, fourth, that the court erred in requiring the witness Smiley to answer the said question.
    The court will observe that the case inquired about by the defendant is the same case in which the record was introduced by the court as showing a conviction; and which record forms a part of the bill of exceptions in the case at bar. Now, we claim that it was certainly a disparaging course of examination to inquire of the witness as to whether or not he testified as a witness for the state in that case. If he were under subpoena and called as a witness, he was obliged to testify; and. to allow the jury to infer from some far-fetched argument of counsel that because of the fact that he did testify that there was something wrong about his testimony, or that his testimony was given upon some deal or understanding with the state’s attorney is certainly prejudicial to the state, and disparaging to the defendant as well as being uncalled for by the circumstances of the case. Wroe v. State, 20 Ohio St., 460; Hanoff v. State, 37 Ohio St., 178; Hamilton v. State, 34 Ohio St, 82.
    The fifth and sixth grounds of error are that the court erred in refusing to admit the testimony of Senator Haas as to a certain conversation with Diegle with reference to fixing up a story to beat the prosecution for the reason that the state had not shown a prima facie case of conspiracy between the defendant, Huffman, and Diegle.
    A prima facie case is made whenever the facts and circumstances or the facts or circumstances sustain a logical and reasonable inference of the existence of the facts to be proved; and this is true of a conspiracy the same as any other facts to be proved. Goins v. State, 46 Ohio St., 457; Spies v. People, 122 Ill., 1, 6 Am. Cr. Rep., 570; Gardner v. Preston, 2 Day (Conn.), 208; 3 Greenleaf on Evidence (16 ed.), Sec. 93; 2 Wharton on Crim. Evidence (10 ed.), Sec. 1398.
    The seventh ground of error is that the court erred in admitting the record of the courts of Cook county in the state of Illinois, as to the plea made to a certain criminal charge against the witness Smiley, after the said witness had been called by the defendant upon cross-examination to testify to his plea and which record did not contradict the witness and did not show a conviction of the offense charged against the witness in the said Cook county court. Coble v. State, 31 Ohio St., 100; Poage v. State, 3 Ohio St., 230; 1 Wharton on Crim. Evidence (9 ed.), Sec. 489; Reg. v. Hinks, 2 C. & K., 464, 1 Den. C. C, 84; 1 Russell on Crimes (1896), 71; Blaufus v. People, 69 N. Y., 107; Lee v. Gansel, Cowp., 3; Commonwealth v. Gorman, 99 Mass., 420; Commonwealth v. Bonner, 97 Mass., 587.
    The eighth ground of error is that the court refused to admit the written record of the testimony of character witnesses called by the state to testify as to the good character of the witness Smiley for truth and veracity, which said witnesses had theretofore testified at another hearing of the same case and had been examined by the same attorney. State v. Wing, 66 Ohio St., 407; Summons v. State, 5 Ohio St., 325.

      Messrs. Belcher & Connor, against the exceptions.
    The court did not err in refusing to sustain the challenge for cause by the state to the juror, Harry Efau. Goins v. State, 46 Ohio St., 457; Lindsey v. State, 69 Ohio St., 215.
    Unanimity of verdict. Fight v. State, 7 Ohio (pt. 1), 181; Dussel v. Street Rd. Co., 10 Ohio Dec., 631, 52 Ohio St., 649; State v. Johnson, 11 Ohio Dec., 774; Eislein v. Palmer, 12 O. C. D., 725; Work v. State, 2 Ohio St, 296.

      There was no error in permitting the defendant to cross-examine the witness Smiley, nor in permitting the defendant to offer the record of the indictment and proceedings thereunder against the said Smiley. Wroe v. State, 20 Ohio St., 461; Hamilton v. State, 34 Ohio St., 82; Hanoff v. State, 37 Ohio St., 179; Martin v. Elden, 32 Ohio St., 289; Clinton v. State, 33 Ohio St., 27; 1 Wharton on Crim. Evidence (10 ed.), Secs. 474, 477; Ritsman v. People, 110 Ill., 371; Tracy v. People, 97 Ill., 101; Wilbur v. Flood, 16 Mich., 40; Saunders v. People, 38 Mich., 218; 1 Greenleaf on Evidence (16 ed.), Sec. 461 &; 2 Wigmore on Evidence, Secs. 980, 982, 1270.
   O’Hara, J.

The defendant, Isaac E. Huffman, was indicted by the grand jury of Franklin county for accepting a bribe while a member of the senate of the state of Ohio. During the trial in the court of common pleas certain questions were raised as to the proper method of examining prospective jurors, and also as to the admission and exclusion of evidence, which were, decided adversely to the state. Thereupon exceptions to these rulings were taken by the attorney general and prosecuting attorney, and filed in this court by leave, under Sections 13681 et seq. of the' General Code, in order to have the law determined for similar cases.

The state claims that the trial court erred in permitting the defendant to inquire of each juror upon his voir dire whether he would stand upon his opinion of not guilty, formed after due deliberation, or would yield his opinion merely for the purpose of reaching a verdict in the case. The point raised is fairly shown by the following questions which were put to one of the jurors, with his answers thereto:

“Q. Suppose that you are accepted as a juror in this case, you hear all the evidence and the arguments of the attorneys on both sides, and the charge of the court, and then you retire to your jury room, and when you reach your jury room you have a doubt, a reasonable doubt, in your mind that the defendant is guilty, and that you argue the case and hear the arguments of your fellow jurors, and that you still have that reasonable doubt of his guilt? A. Yes, sir.
“Q. I want to know whether or not you will stand by your honest conviction and hand a verdict of not guilty, or whether you will yield your own conviction merely for the purpose of reaching a verdict in this case. Just think that over and tell the court how you feel about it. A. I will istand to my own opinion; to my honest conviction.”

It is contended on behalf of the state that the purpose of this examination is to give a juror the idea that, should he form- an opinion of not guilty after hearing the evidence and arguments and after deliberation in the jury room, he must not upon further deliberation yield to the opinion of his fellow jurors, and that this tends to coach a juror to obstinacy of opinion and promotes the chances of a disagreement. The defendant contends that such questions are proper because he is entitled to the unanimous verdict of the jurors and to the benefit of every reasonable doubt; also that he is entitled to know the mental attitude and firmness of prospective jurors, in order that he may be better able to protect his rights in the selection of the jury.

The object of the examination of persons called to act as jurors is to determine whether or not they are qualified to sit in the trial, and for this purpose a rigid examination is allowed before their acceptance by the parties to the cause.

Our statutes have prescribed certain grounds which justify challenging for cause, and the courts have been liberal in permitting investigation to be made in order to ascertain whether any of them exist.

But it will be found that the grounds which are thus recognized are only those existing at the time of the examination, such as the citizenship of the jurors or similar legal requirements; their relationship to the parties or the cause; their opinions and prejudices, or any other facts that show the actual disposition of their minds toward the parties or the subject-matter of the action.

It is not proper, however, to submit hypothetical questions to the jurors in an effort to learn in advance what they will do in a supposed state bf the evidence or upon a supposed state of facts, and thus possibly commit them to certain ideas or views when the case shall be finally submitted to them for their decision. State v. Bokien, 14 Wash., 403; Commonwealth v. Van Horn, 188 Pa St., 143; People v. Warner, 147 Cal., 546; Hughes v. State, 109 Wis., 398; Thompson on Trials (2 ed.), Sec. 102.

With reference to the unanimity of verdict and the adherence of each juror' to his own convictions, the observations of Mr. Justice Brown in a homicide case, sustaining a charge to the following effect, are'in point: “While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself.” Allen v. United States, 164 U. S., 492, at page 501. The jury in criminal cases should be, and undoubtedly always is, carefully cautioned by the court to consider the evidence and render its verdict according to established rules of law, one of which is that it must be convinced from the testimony that the crime charged has been proven beyond all reasonable doubt before it can find the defendant guilty. It would therefore seem that the proper safeguards have been preserved when fair and impartial jurors have been secured to try the issue, and that it can serve no good purpose to confuse their minds in advance with matters that should only be considered by them wñen in the jury room after having received full instructions from the court.

We think the court erred in permitting the above and similar questions to be asked of the jurors, and this exception will therefore be sustained.

The state also excepted to the ruling of the trial court that a prima facie case of conspiracy had not been made out by the state between Rodney J. Diegle, George K. Cetone and the defendant to fix up a story to defeat the prosecution, in consequence whereof the court- refused .to admit the testimony of W. E. Haas as to a conversation with Diegle in reference to such conspiracy.

The defendant Huffman and the said Cetone and Haas were all members of the senate of the state of Ohio in the month of April, 1911, when the alleged bribery is claimed to have taken place, and the said Diegle was sergeant-at-arms of -the senate at the same time.

Indictments had also been found against Cetone and Diegle for bribery, arising out of the same transaction on which the indictment against Huffman was founded. After the state had offered evidence in support of the charge contained in the indictment now under consideration, which tended to show that the defendant Huffman and the said Cetone and Diegle were all connected with and concerned in the alleged act of bribery, it called Senator Haas as a witness, who testified that shortly after the return of the indictments he had separate talks with Huffman, Cetone and Diegle in the senate chamber, on the same day and upon the same matter. He was permitted t'o testify that Huffman twice asked him if he had seen Diegle, and if he (Haas) was coming down to his (Huffman’s) room at the Virginia Hotel. The witness answered that he had seen Diegle, and that he stated he did not know whether or not he would go down to Huffman’s room, but' that he would see.

The state thereupon asked the witness to give his conversation with Diegle which had occurred prior to those with Huffman, but the court sustained an objection to the question and excluded the evidence. The state thereupon offered to prove that, if permitted, the witness would have testified that Diegle asked him to do down to Huffman’s room in order to fix up a story to the effect that Diegle, Huffman and Cetone had arranged to go down to the Chittenden Hotel for the purpose of catching a bribe giver. It appears that the act of bribery charged in the indictment was alleged to have occurred at the Chittenden Hotel, Columbus, in April, 1911, and the state claimed that Huffman, Diegle and Cetone were all implicated in and parties to the transaction.

It is not disputed by the defendant that evidence showing a conspiracy on the part of defendant and others to invent a defense would have been competent. It is claimed, however, to be manifest that the testimony offered, taken in conjunction with that already admitted, was not sufficient to connect Huffman with any such conspiracy and was therefore inadmissible, but this objection goes to its weight rather than its competency. Thp rule is- well settled that direct evidence is not necessary to prove a conspiracy,. but that such proof must generally, from the very nature of the case, be circumstantial.

As has been well said in Gardner v. Preston, 2 Day (Conn.), 205, at page 209: “A combination or conspiracy may be proved, by evincing a concurrent knowledge and approbation in the persons conspiring of each other’s acts; and it is most usually done by proof of the. separate acts of sev-. eral persons, concentrating in the same purpose or particular object. The greater the secrecy that is observed relative to the object of such concurrence, and the more apparent the similarity of the means employed to effect it, the stronger is the evidence of conspiracy.”

The text-writers agree that if it be proved by their conduct that alleged conspirators were pursuing the same object by the same means, each performing a different part of the act with a view to its attainment, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. 3 Greenleaf Evidence (16 ed.), Sec. 93; Wharton Crim. Law (8 ed.), Sec. 1398.

The evidence of Senator Haas with reference to his conversation with Diegle, as shown by the proffer made by the state, taken in connection with his testimony as to his conversations with Huffman and Cetone at practically the same time and place, would certainly tend to show a concerted effort on the part of the three persons in question to undertake to devise or perfect some plan of fabricating a defense to defeat the charges then pending against them all.

It was also claimed on behalf of defendant at the oral argument, that in any event such evidence was not competent as a part of the state’s case in chief. But the fabrication of testimony gives rise to an inference, generally considered and treated as a presumption of fact, against the party guilty of that practice, and from its nature such conduct partakes strongly of the character of an admission against interest. 2 Wharton Crim. Evidence (10 ed.), pages 1412, 1485 et seq., and cases cited. See also Moore v. State, 2 Ohio St., 500. For these reasons we consider that the testimony was properly offered as a part of the case in chief, and should have been admitted. These two exceptions will therefore also be sustained.

Several other exceptions are ur'ged on behalf of the state which we shall briefly consider. It is claimed that the court erred in refusing to sustain for cause the challenge of the state to one juror whose estimate or opinion of the value of testimony given by private detectives was sought upon his voir dire, the state maintaining that his examination showed prejudice against such testimony. But from his entire examination it appeared thqt he was willing to consider it the same as he would all the other evidence, under proper instructions from the court, and that, notwithstanding any possible opinion or prejudice, he stated that he could and would render a fair and impartial verdict according to the law and the evidence, whereupon the court overruled the challenge for cause.

As the trial court who had the juror before it was satisfied with his qualifications, we do not feel that the record shows any abuse of discretion, but that, on the contrary, it comes within the rule laid down in Lindsey v. The State, 69 Ohio St., 215. This exception is therefore overruled.

It is further claimed by the state that the trial court erred in permitting the defendant to inquire of the witness Frank Harrison Smiley, for the purpose of attacking his credibility, if he did not testify as a witness on behalf of the state of Illinois in a certain criminal proceeding, and in requiring Smiley to answer the question. The witness was a private detective called by the state, upon whose evidence the proof of the charge relied upon in the present case largely depended. He admitted that he had been indicted, with others in the state of Illinois for criminal conspiracy to defraud and had pleaded guilty, but the plea was subsequently withdrawn and the proceeding dismissed. The advantages of proper and thorough cross-examination have come to be well recognized, and considerable latitude is allowed, even in civil cases. As has been said by' this court: “The importance of the right of full cross-examination of an adverse witness, can scarcely be overestimated. As a test of the accuracy, truthfulness and credibility of testimony, it is invaluable.” Martin v. Elden, 32 Ohio St., 282, at page 287. The right certainly should not be abridged in criminal cases, involving as they do the liberty, life or honor of a defendant, and in which bitterness of feeling and actual hostility frequently exist on the part of the adverse witnesses. Therefore, in order to arrive at the truth and promote the ends of justice, it has been uniformly held in this state that the limits to which a witness may be cross-examined on matters not relevant to the issue, for the purpose of judging of his character and credit from his own voluntary admissions, rests in the sound discretion of the trial court, and this will not be interfered with unless abused to the prejudice of the party complaining. Wroe v. State, 20 Ohio St., 460; Hanoff v. State, 37 Ohio St., 178.

We feel that the foregoing question and answer do not exceed the legitimate bounds of cross-examination in the present case, and that in permitting them the court acted within its discretion. These exceptions are therefore overruled.

In the same connection, the defendant offered in evidence the record of the above case in Illinois against the witness Smiley, and the objection of the state thereto was overruled and its exception noted. The state contends that the record does not show a conviction within the meaning of Section 13659, General Code, and that it is therefore inadmissible. This contention is borne out by the authorities, and if that were the only purpose in offering the record the objection would be well taken. But as the indictment contained in the record shows the exact offense with which the witness Smiley was charged, and is closely connected with his cross-examination as above indicated, some of the other members of this court are of the opinion that it was properly admitted, and the exception will therefore be overruled.

The last exception on behalf of the state is to the refusal of the trial court to admit in evidence the transcript of the testimony given by certain witnesses at the former trial of this defendant as to the good character and reputation of the witness Smiley for truth and veracity. At the former trial the defendant attacked his character and reputation, and several witnesses from Chicago were called by the state who testified in his favor. At the present trial the defendant made the same attack upon Smiley, and the state, being unable to procure - the attendance of the said witnesses, sought to introduce their testimony given at the former hearing. As no showing was made that any of the witnesses were dead, or that they were absent through the connivance or by the procurement of the defendant, the case comes within the rule laid down in The State v. Wing, 66 Ohio St., 407. The evidence was therefore properly excluded, and the exception will be overruled.

Exceptions 2, 5 and 6 as numbered in the record are sustained, and exceptions 1, 3, 4, 7 and 8 are overruled, and it is so ordered.

Davis, C. J., Spear and Donahue, JJ.,. concur; Shauck, J., concurs as to exceptions sustained. Johnson, J., not participating.


author: Donahue, J.

text:
    The State of Ohio, ex rel. Board of County Commissioners of Marion County, v. Allen, County Auditor.

      '■Duty of county auditor to certify moneys into treasury — Section 2567, General Code — Auditor not to designate fund to which moneys belong — When moneys belong to no fund — County commissioners to direct the fund.

    1. By the provisions of Section 2S67, General Code, it is the duty of the county auditor to certify into the county treasury all moneys except moneys collected on the tax duplicate, to the credit of the fund to which it belongs.
    2. This section . of the General Code does not clothe the county auditor with any authority or discretion to designate the fund to which it shall be credited, but it must be credited by him to the fund in which it legally belongs. His duties in this respect are ministerial only.
    3. Where funds reach a county treasurer, either by gift or otherwise, that belong to no particular fund, or where there is nothing whatever to show in which fund the money belongs, the board of county commissioners has authority to determine and direct the fund to which such moneys shall be credited.
    No. 12896
    Decided June 27, 1912.
    Error to the Circuit Court of Marion county.
    On the 26th day of January, 1909, some unknown person forwarded by mail to William C. Wottring, county treasurer of Marion county, Ohio, $500 in money, enclosing therewith the following written statement: “Please put the enclosed $500 in the county treasury. Money that don’t really belong to me. For work which I could done that much less.” The matter having .been called to the attention of the county commissioners of Marion county, that board made and entered on its journal an order directing Charles ,L. Allen, the county auditor of Marion county, to certify this $500 into the county treasury of Marion county, Ohio, to the credit of the pike fund of that county. The county auditor refused to do this, and the county commissioners then brought an action in mandamus against the auditor to compel him to comply with its order in reference to this fund. To this petition of the county commissioners the auditor filed a general demurrer, which demurrer was sustained by the common pleas court, and -the plaintiffs’ petition dismissed. An appeal was taken by the commissioners to the circuit court of that county, and the circuit court also sustained the auditor’s demurrer to the petition, and a final judgment dismissing relator’s petition was entered. This proceeding in error is prosecuted to reverse this judgment of the circuit court.

      Mr. Charles L. Justice and Messrs. Crissinger & Guthery, for plaintiff in error.
    A county auditor is a ministerial officer and does not act in either a judicial or quasi-judicial capacity, except in such cases as the legislature may clothe him with discretionary power. His acts rightfully done are binding, and those he does without authority have no efficiency.
    Of course, at all times the auditor must act with caution and with reasonable prudence; he is not a mere machine nor a mere automaton. He is a public officer under certain obligations to the people,- and if he fails to do his duty he is liable to be ousted from office and punished criminally. Of course, he must think as he does his work, but the point is here made that in almost every duty devolving upon him and his office, the acts to be performed are purely ministerial, and being ministerial, he must do as directed by statute or by those who have authority to direct his acts. Wells v. Adair, 29 W. L. B., 205; Commissioners v. Auditor, 1 Ohio St., 322; Swearingen’s Lessee v. Hawkenberry, Wright, 111.
    Boards of county commissioners, therefore, being creatures of statute, have such powers and such only, as are conferred by statute; however, it is maintained that said boards may exercise powers which, though not expressly granted by statute, are yet by necessary implication conferred upon them by statutes giving them certain powers or requiring duties of them which would be impossible for them to exercise without such implied powers. Commissioners v. Railway Co., 45 Ohio St., 401; Barber v. Commissioners, 7 N. P., 330; Deters v. Commissioners, 1 C. C, 295; State v. Piatt, 2 W. L. J., 213, 15 Ohio, 15; Carder v. Commissioners, 16 Ohio St., 353; Shanklin v. Commissioners, 21 Ohio St., 575; Christy v. Commissioners, 41 Ohio St., 711; Section 845, Revised Statutes. '

      Mr. John H. Clark, for defendant in error.

      Mandamus lies in all cases where the relator has a clear legal right to the performance of an official or corporate act by a public officer or corporation and no other adequate or specific remedy. C. W. & Z. Rd. Co. v. Commissioners, 1 Ohio St., 77; State,

      ex rel., v. Commissioners, 20 Ohio St., 425; State, ex rel., v. Yeatman, 22 Ohio St., 546; Ex parte Black, 1 Ohio St., 30; Kloeb v. Mercer County, 4 C. C., N. S., 565, 26 C. C., 152; State, ex rel., v. Duerr, 5 Cir. Dec., 400, 11 C. C., 303.
   Donahue, J.

The only question presented by this record is whether the board of county commissioners has the authority to direct, into which of the county funds this money shall be certified. Counsel for the auditor insist that by the provisions of Section 2567, General Code, authority is given to the auditor to determine the fund to which this money shall be credited. This section reads as follows: “Except moneys collected on the tax duplicate, the auditor shall certify all moneys into the county treasury, specifying by whom to be paid and what fund to be credited, charge the treasurer therewith and preserve a duplicate of the certificate in his office. * * * ”

The language of this section is not ambiguous. Clearly the county auditor must exercise his intelligence in determining the fund to which money so certified shall be credited, but the fact that he is required to use his intelligence in discharging his duty under this section would in no way indicate that he is clothed with any discretion or authority to make an adjudication in reference thereto that would be binding upon anybody. It is his duty to certify the money to the credit of the fund in which it belongs, and when he does this' he performs his full duty, but if in the exercise of his intelligence he arrives at a wrong judgment and credits the money to a fund in which it does not belong, it could hardly be contended that his judgment is final in that respect. In other words, if the money belongs to the poor fund, and he credits it to the general fund, he would not have performed his duty under this section, and his opinion that the money should be credited to the general fund would be no defense whatever in an action in mandamus to compel him to perform properly his duties as auditor. In this case there is nothing to show in which fund the money belongs. If it belongs to any particular fund, and there was any evidence to show that fact, then it ' should be placed to the credit of that fund, and it would be the auditor’s duty to so credit it, and the board of commissioners would have nothing whatever to do with it.

The purpose of this statute is very ably discussed in the case of Shanklin et al. v. Commissioners of Madison County, 21 Ohio St., 575. It is there said that: “In devising a system of checks on the treasurer, the legislature deemed the auditor’s warrant an efficient 'instrumentality for that purpose, by the registry of which, in the books of his office, the aggregate liability of the treasurer might be shown. * * * But, without enlarging, it is sufficient to affirm that the auditor’s warrant is an element in the statutory system of bookkeeping devised for the protection of the funds belonging to the county, not a muniment or condition of title in the county.” In that case it was held that the certificate of the auditor was not necessary to transfer the title to the county of a bank’s certificate of deposit accented by the commissioners in reimbursement of county moneys embezzled by a county treasurer. There is nothing in the written communication accompanying this money that indicates the fund from which it had been-drawn. It does appear, however, that it was money paid out for work or services performed for the county. Nor does anything appear that would show the money was embezzled, or that the county had a legal right of action to recover the same. All that does appear is that the man who received it believed he had received too much for his services and his conscience being troubled thereby he returned the money to the county. The return of this money was purely voluntary. Legally he may have been entitled to every dollar of it, and so far as appears from this record he was entitled to it. His judgment as to the value of the services he Had performed for the county might have been erroneous, but however that may be, there is absolutely nothing to show that* the county had any legal claim or demand against him that it could enforce, or that any other consideration moved the return of this money to the county except the honest purpose of the individual returning it, and his desire to satisfy his own conscience. In no phase of this case can it be considered other than a gift to the county. The donor imposed no conditions whatever, neither did he direct the fund into which it should be placed, nor the purposes for which it should be expended. That being true, it belonged to no particular fund, nor were any facts presented by which the auditor could determine that it belonged to any particular fund. As soon as it reached the treasurer’s hands it became the property of the county without the certificate of the county auditor authorizing its acceptance, for as we have already seen this court in the case of Shanklin v. Commissioners, supra, has held that the auditor’s certificate is not necessary to pass the title to the county, but that certificate is merely for the purpose of proper bookkeeping.

As early as the case of Carder v. Commissioners of Fayette County, 16 Ohio St., 354, this court declared that: “The board of county commissioners is the body — the quasi corporation — in whom is vested by law the title to all the property of the county. In one sense they are the agents of the county, and in another sense they are the county itself. It is in this latter sense that they acquire and hold in perpetuity, the title to its property. In this capacity they not only act for the county, but also act as the county.” In that case it was a devise, a gift by will. This case does not differ from that simply because it is a gift delivered in the lifetime of the donor. If all the facts were known in this case, the return of this money to the county might not be a gift, but we are at a loss to know how in the absence of any proof whatever to show that the county was legally entitled to the same that it can be designated as anything but a gift. Nothing passed from the county to the individual returning it. He was moved by no consideration whatever, except his conscience and his judgment of the value of the services performed, and that would by no means constitute a cause of action in the county to recover the fund, even though the individual had been known. It would be necessary in addition thereto to show that it had been drawn illegally from the county in some such manner as would authorize a suit to recover it, but whether it be a gift or not the result must be the same. This money is now the property of the county. It should be returned to the particular fund from which it was withdrawn, but it is impossible from the evidence at hand to determine that fund. The suggestion found in the brief of counsel for the auditor that in that case it should pass into the general fund, would appeal very strongly to this court if it had the authority to determine the question, but in the absence of any proof whatever as to the fund from which it was withdrawn, its legal status is the same as if it had never been.the property of the- county, and never had been withdrawn from its treasury. It is now money belonging to the county, to be expended by the county for any lawful purpose, arid that purpose must be determined b}>- the county itself, or by those officers representing the county and authorized to act for it. In Ohio that authority is the board of county commissioners, in whom is vested by law the title to all the property of the county.

It is the duty of this board, and the authority of this board, to determine and direct into which fund this money shall be placed, and, having so determined that question, it becomes the duty of the auditor under Section 2567, General Code, to certify this money into the fund designated by the county commissioners to the credit of that fund, and charge the treasurer accordingly. He has no power or authority whatever to deal with the money of the county, except as directed by law, or by those having lawful authority and discretion to make such orders and directions.

For error in sustaining the demurrer to relator’s petition, the judgment of the circuit court is reversed. The demurrer to the petition is overruled and a peremptory writ awarded. It appearing, however, that the auditor was acting in the line of his official duty, and that the question involved was so doubtful that the courts have differed as to the proper construction of the statute, it is ordered that the costs of this suit be paid out of the fund.

Judgment reversed and judgment for relator.

Spear, Shauck, Johnson and O’Hara, JJ., concur. Davis, C. J., not participating.