author: Burket, C. J.

text:
    The State of Ohio ex rel. Kemp v. Clarke et al.

      Boards of equalization — Provision for annual city boards — Section 2805, Revised Statutes — Inconsistent with act of May 10, 1902 — Conflict of laws.

    Section. 2805, Revised Statutes, providing for annual city boards of equalization conflicts with, and is inconsistent with, the act of May 10, 1902, 95 Ohio Laws, 481, entitled, “An act to provide for the appointment of a board of review for the equalization of real and personal property,” and is therefore expressly repealed by section five of said act.
    (Decided June 2, 1903.)
    In Mandamus.
    The plaintiff filed the following petition in this court, caption, signature and verification being here omitted :
    “The relator, Samuel E. Kemp, is a' resident and taxpayer, residing within the city of Dayton, Montgomery county, Ohio.
    “The defendants, Edwin T. Clark, Chas. A. Wintersteen, John Buck, Chas. E. Simms, Wilson J. Pierce, Chas. G. Lander, John Hoban, Peter Zimmer, Emery F. McMichael, Jos. W. Miller, John M. Betsch, Chas. A. Stainrook and Isaac Kinsey, are the duly elected, qualified and acting members of the city council of the city of Dayton, Ohio.
    “No application has been made by the auditor of Montgomery county, being the county in which said city of Dayton is located, to the state board of appraisers and assessors, for the appointment of a board of review for said city of Dayton, as provided by the act of May 10,1902 (95 O. L., 481), and no such board has been appointed.

      “Two vacancies have occurred in the city board of equalization of said city of Dayton, by reason of the expiration of the terms of office of two members of said board of equalization. It is the duty of said, defendants as city council of Dayton, under and by virtue of the provisions of Section 2805, Revised Statutes, to appoint two members of said city board of equalization, .for the full term of three years each. But said defendants refuse to make said appointments, although requested so to do, alleging as a reason for such refusal, that Section 2805, Revised Statutes, is unconstitutional; also, that the power to appoint members of the city board of equalization has been taken from the city council by the provisions of section 123 of the act of October 22, 1902 (96 O. L., 20 et seq.); also that Section 2805, Revised Statutes, is repealed by the provisions of the act of May 10, 1902 (95 O. L., 481).
    “Relator requested the. city solicitor of Dayton to commence and prosecute an action in mandamus to compel said city council of Dayton to appoint members of said board of equalization for said city of Dayton, but he has refused to comply with said request.
    “Wherefore, relator prays that a writ of mandamus issue against the defendants, commanding them to appoint two members of the board of equalization for the city of Dayton for the full term of three years, and asks such other relief as the nature of the casé may require.”
    To this petition the defendants filed a general demurrer, which was sustained by the court, and the plaintiff not desiring to amend, the petition was dismissed at costs of the relator.

      Mr. J. M. Sheets, attorney general, for plaintiff.

      Mr. Edwin P. Matthews and Mr. Philo G. Burn-ham, for defendants.
   Burket, C. J.

The only pretended warrant of law for the filling of vacancies in the said city hoard of equalization is found in Section 2805, Revised Statutes. The part of said section covering the subject matter of this controversy is as follows:

“In each city of the first and second class there shall be an annual board for the equalization of the value of real and personal property, moneys and credits in such city, to be composed of the county auditor and six citizens of such city, appointed by the council thereof, except in cities of the second grade, first class, where the mayor of such cities shall make such appointments, the first appointment to be two for one year, two for two years, and two for three years, except in cities in which such boards are already, organized, when two shall be appointed for three years, and two shall be thereafter appointed annually for three years; and all vacancies shall be filled for the unexpired term, provided that the provisions of this act shall not affect any person or persons heretofore appointed, and now in office, during the time for which they shall have been appointed; but in cities of the second class, third grade a, and third grade c, said six members shall be appointed by the board of tax commissioners, and the appointment of said board shall be so made, and the vacancies shall be so filled, that not more than three members thereof shall be of the same political party, faith and allegiance, the first appointments to be two for one year, two for two years, and two for three years, and all the vacancies shall be filled for the unexpired terms from persons of the same political faith as those whose terms shall have expired. Said boards shall have all the powers, and be governed by the rules, provisions, and limitations prescribed in the next preceding section, for the annual county board ; each member of said board is authorized to administer oaths, and said board is empowered to call persons before them, and examine them, under oath, in regard to their own or others’ property, moneys, credits and investments, and the value thereof, and to equalize the value of real and personal property, moneys, credits, and investments within such cities, and to order any property, credit or investment to be placed on the duplicate for taxation, and fix the value thereof according to law, which has not been listed for taxation, and to increase the value of such property, moneys, credits and investments, as have in their judgment, been listed at less than their true value in money, and to reduce the value of such property, moneys, credits or investments as have been appraised above their true value in money, and shall annually meet at the office of the county auditor on the fourth Monday in May, except in cities of the first and second grade of the first class, when it shall meet on the fourth Monday in May, and shall close its session on or before the second Monday of September; except that in cities of the third grade of the first class, and in cities of the first and second grades of the second class, and in cities of the second class, third grade a, and cities having a population of twenty thousand and over by the last federal census, and which have not been by ordinance advanced to a city of the second grade of the second class, said board shall close its session on or before the first Monday of August; and in cities of the third grade o and dourth grades of the second class, said board shall close its session on or before the fourth Monday of June then next following.”

If this section is now in force as a valid statute, the demurrer should have been overruled and the prayer of the petition granted; but if said section is not now in force, the demurrer was properly sustained and petition dismissed.

The first section of the act of May 10, 1902, 95 ,0.. L., 481, is as follows:

“Upon the written application of the county auditor’ of any county to the state board of appraisers and assessors, for the appointment of a board of review for any municipal corporation of such county, for the equalization of real and personal property, moneys and credits within such municipal corporation, said board of appraisers and assessors may. appoint said board of review, to be composed of three citizens, freeholders of such municipal- corporation, not more than two of Avhom shall belong to the same political party, one member of such board to be appointed for the term of one year, one member for the term of three years, and one member for the term of five years; and thereafter at the expiration of the term of any member, there shall be appointed by the said state board of appraisers and assessors, a freeholder of such municipal corporation as successor to such member for the term of five years, and all vacancies in said board shall be filled for the unexpired term in the same manner as the original appointment. The state board of appraisers and assessors may, at its discretion, remove any member of said board. Said board of review shall within and for their respective municipalities have all the powers and perform all of the duties heretofore conferred upon or required of the annual city board for tbe equalization of the value of real and personal property, moneys and credits; tbe decennial city board, for tbe equalization of tbe value of real property; and tbe annual city board of revision; and tbe decennial city board of revision, under any and all laws now in force, pertaining to sucb municipalities. And said board of review shall be tbe successor of said board of revision, said annual city board and said decennial city board, all of which boards shall, upon tbe appointment of a board of review in any municipal corporation under this act be abolished. Said board of review shall have power to bear complaints and to equalize tbe valuation of real and personal property, moneys and credits within sucb municipal corporation as said board of review may be located, and shall be governed by rules prescribed, for tbe government of decennial county and city boards, and annual county and city boards, for tbe equalization of real and personal property.”

Section five of tbe same act reads as follows:

“All of tbe provisions of tbe Eevised Statutes of tbe state of Ohio are hereby repealed in so far as they conflict with or are inconsistent with tbe provisions of this act, and not otherwise.”

As tbe powers of tbe board of review and tbe duties to be by it performed, include tbe powers and duties of tbe annual city board of equalization as prescribed in said section 2805, and as said board of review is made tbe successor of said annual city board, it is clear that said section 2805 conflicts with, and is inconsistent with, said act of May 10,1902, and is therefore expressly repealed by section five of said act

Other considerations urged in behalf of defendants, would equally show tbe present invalidity of said section, but-as the above is sufficient, they become unimportant.

Petition dismissed.

Davis, Shauck, Price and Crew, JJ., concur.


source: Caselaw Access Project

author: Crew, J. Davis, J.

license: Public Domain

text:
    The Marine Insurance Co., Limited, of London, a Corporation, v. The Walsh-Upstill Coal Co., a Corporation.

      Marine insurance — Policy contains “contract proposition"1 — Insurance fails to cover cargoes shipped by defendant — Unless defendant is owner of property or agent for shipper having interest.

    Where, by what is denominated a “contract proposition,” request is made of an insurance company for a policy of marine insurance in which “contract proposition” it is stated: “Insurance is wanted by the Walsh-Upstill Coal Company covering all shipments of the following description of. ■articles, viz.: Sundry coal cargoes, belonging to them, and as agents, at risk,” etc., a policy of insurance issued, upon such application which states that insurance is made! “as per said contract,” will apply to and cover only suchi cargoes shipped by the Walsh-Upstill Coal Co., as shall belong to it as owner and to such as shall be shipped by it as-agent in which it shall have some pecuniary interest at risk.
    (Decided June 16, 1903.)
    Error to the Circuit Court of Cuyahoga county.
    The defendant in error, the Walsh-Upstill Coal Co., a corporation, brought suit in the» court of common pleas of Cuyahoga county, against the plaintiff in error, the Marine Insurance Co., Limited, of London, England, on a policy of insurance issued to it by said Marine Insurance Co. .
    The Walsh-Upstill Coal Co., the nominal plaintiff in said suit, brought the action, as averred in its pe■tition, for the use of the R. P. Elmore Co., a corporation of Milwaukee, Wisconsin. In its petition the Walsh-Upstill Coal Co. alleged that:
    “On April 26,1897, the defendant, in consideration of the agreed premiums to be paid it by plaintiff, duly issued and delivered to plaintiff an open cargo policy of insurance, with certain contract propositions thereto attached, a copy of which .is hereto attached, marked ‘Exhibit A.’ In and by said policy defendant insured plaintiff on all shipments of coal cargoes belonging to' plaintiff, or represented by it as agent, provided the shipments thereof be reported to defendant’s Cleveland agent, by plaintiff, as soon as plaintiff should receive advice of such shipment; and such insurance, by the terms of said policy, was against the adventures and perils of the lakes, rivers, canals, railroads, fires, jettisons, and all other perils and misfortunes that have or shall come to the hurt, detriment or damage of the said property, or any part thereof. In and by said policy defendant insured all such shipments of coal made from and after April 1, 1897, to and including December 1, 1897; and said policy provided that the risk thereunder upon each such shipment should begin from and immediately following the loading thereof at the port or place named in the indorsement, and should continue and endure until the same should arrive and be safely landed at the port “of destination, and not exceed forty-eight hours from the time of arrival.
    “On November 29, 1897, plaintiff, acting as agent of the R. P. Elmore Co., of Milwaukee, shipped a cargo of 1,836 tons, 900 pounds of coal, at Cléveland, Ohio, on the steam propeller Egyptian, consigned to the R. P. Elmore Co., Milwaukee, Winconsin; and said steam propeller sailed from Cleveland on said voyage, November 29, 1897. * * *
    “Said steamer Egyptian, while making said voyage caught fire and burned to the water’s edge, a short distance above Thunder Bay Island, on Lake Huron, at a place covered by said insurance, on the night of December 1, 1897, the hull of.said steamer filled with water, and such portions thereof, and of said cargo, as were not consumed by said fire, sank to the bottom of Lake Huron in very deep water; whereby said cargo became a total loss.”
    •There was the further averment of due proof of loss and of the refusal of defendant to pay, and the allegation that there was due plaintiff from the defendant by reason of the premises, the sum of $3,-990.72, with interest thereon from January 18, 1898, and a prayer for judgment for that sum. The contract proposition attached to said policy of insurance was in the words and figures following, to-wit:
    “contract proposition.
    “To The Marine Insurance Co., Limited, of London, England: Insurance is wanted by the Walsh-Upstill Coal Co. covering all shipments of the following description or articles, viz., Sundry coal cargoes, belonging to them and as agents, at risk, and reported as herein stipulated, from April 1,1897, until December 1, 1897, at and from lake ports, by the following routes, modes and conveyance and rates of premium, viz.: From Lake Erie to Detroit and St.' Clair River, and to Lakes Huron, Ontario, Michigan and Superior, 15 cents per $100, on standard sail and steam vessels not classing below A2%.
    “B1 vessels,.22% cents per $100.

      “131% vessels, 30 cents per $100 to September 1st; 40 cents per $100 to October 1st; 60 cents per $100 to November 1st; 75 cents per $100 to November 30th.
    Subject to the conditions of cargo policy No...... of...........................Insurance Co., Ltd., of...................... All shipments attaching under said policy shall be valued at invoice cost, with ten (10) per cent, added, unless otherwise agreed upon prior to shipment; each shipment to be reported to the agent of the said insurance company, at Cleveland, Ohio, as soon as receiving invoices. Shipments on any one vessel limited to $...........premiums payable monthly.
    “Dated, Cleveland, Ohio, April 1, 1897.
    “The Walsh-Upstill Coal Co.
    “j. P. Walsh, General Manager, Applicant.
    “Accepted......................189....
    “Hutchinson & Co., Agents.
    “This contract is not binding until approved by C. A. MacDonald & Co., general agents.”
    The Marine Insurance Co. by way of answer alleged :
    “That, under and by the provisions of said contract so attached to said policy, as aforesaid, it was provided that only coal cargoes belonging to the plaintiff and as agent at risk and reported as therein stipulated, should be covered by said policy. And it was provided in said policy that the defendant made insurance as per said contract, dated April 1, ISO 7, on account of the Walsh-Upstill Coal Co. Defendant says that these stipulations in the policy were material to the risk taken by it in issuing said policy of insurance, and binding upon plaintiff.
    “Further answering, it says that the plaintiff did not, at the time of shipment, or any other time, have any ownership or interest in two hundred and twenty-three (223) tons, one hundred (100) pounds, of the coal shipped upon said steamer; that it sold to the R. P. Elmore Co. one thousand, seven hundred and thirteen (1,713) tons, eight hundred (800) pounds, of the coal so shipped, delivered free on board vessel at Cleveland, and that when said coal was delivered upon said vessel it became and was the property of the R. P. Elmore Co., and that the plaintiff had no ownership or interest therein. That all of said coal was shipped as belonging to plaintiff. That no part of said coal so shipped was at the risk of damage or loss to the plaintiff; that plaintiff had no insurable interest in any of said coal at time of shipment or loss, and that plaintiff, with intent to deceive defendant, sought to obtain insurance upon said shipment by representing to the agents of the defendant that said coal belonged to the plaintiff, and was shipped on its account.”
    Replying to these averments of defehdant’s answer the plaintiff “Denies the allegation that it did not at any time have any interest in 223 tons, 100 pounds, of the coal shipped upon the said steamer Egyptian; denies the allegation that plaintiff had no interest in the 1,713 tons, 800 pounds, of said coal which it sold to the R. P. Elmore Co.; denies the allegation that no part of said coal so shipped was at the risk of damage or loss to the plaintiff; denies the allegation that plaintiff had no insurable interest in any of said coal and that plaintiff, with intent to deceive defendant, sought to obtain insurance upon said shipment by representing to the agents of defendant that said coal belonged to the plaintiff and was shipped on its account; and denies the allegation that said policy of insurance never attached to said cargo of coal and said cargo was not covered by said policy.”
    Numerous other averments and denials are made in the pleadings, but they are not material to a determination of the question here presented, and need not be stated. In the court of common pleas, the WalshUpstill Coal Co. recovered a judgment for the full amount claimed, to-wit: $4,633. This judgment was affirmed by the circuit court and it is to reverse this judgment of affirmance that the present proceeding in error is prosecuted by the Marine Insurance Co.

      Messrs. Goulder, Holding & Hasten, for plaintiff in error.
    It appears that at the time the coal was placed upon • the vessel and the attempt made to insure it, none of it belonged to plaintiff, and the shipment was at the sole risk of the R. P. Elmore Co.
    Our first contention is that the Walsh-Upstill Coal Co. had no insurable interest in any part of the coal at the time it entered the cargo for insurance, or at the time of the loss.
    Our second contention is that under and by the terms of the policy it did not cover shipments of coal made by the Walsh-Upstill Co. except “sundry coal cargoes belonging to them and as agents, at rislc.” 1 Parsons on Marine Insurance (ed. 1868), 161; Joyce on Insurance, Sec. 888; 1 Phillips on Insurance, Sec. 2; May on Insurance (4 ed.), Sec. 72.
    From the above authorities it is apparent that unless a person have pecuniary interest in the thing insured — unless he have an interest to be protected from pecuniary loss, he has not an insurable interest.
    We now ask attention to the admission of Mr. Elmore that plaintiff had no interest to protect in the Morris coal, and that it only sought the protection of the R.. P. Elmore Co. therein.
    The Walsh-Upstill Co. made these contentions:
    First — The Walsh-Upstill Co. were insurance brokers, because they were constituted agents to bring risks to the insurer.
    Second — It was an “open pólicy,” to enable the person to insure, not alone its own cargoes, if it has any to insure, but also the cargoes of others for whom it acts as agent.
    . Third — That it was a policy “for themselves and whom it might concern',” and the Walsh-Upstill Co. was not required to have any insurable interest; that it was sufficient if its principal had an interest.
    Was the Walsh-Upstill Co. an insurance broker acting as agent for the insurance company? Did it, as is contended, have authority as such to constitute itself agent for anybody, without risk or insurable interest in the coal, and insure anybody’s cargo?
    That the Walsh-Upstill Co. did not intend to act as a broker is evidenced by the language of its application for insurance, as well as by the fact that it does not claim to have charged commissions to anyone, viz.: “Insurance is wanted by the Walsh-Upstill Coal Co. covering all shipments of the following description of articles, viz.: Sundry coal cargoes, belonging to them and as agents, at risk.” Nor was it the intention of the insurance company in issuing its policy: “On account of the Walsh-Upstill Coal Co. as per contract dated April 1, 1897.”

    Further, it is averred in the petition: “In and by said policy defendant insured plaintiff,” etc.
    Furthermore, defendant was a foreign insurance company, and to constitute plaintiff agent “directly or indirectly” to transact the business of insurance would have been a violation of law (Section 3656, Revised Statutes), and hence against public' policy, and it must clearly appear that such was the intention before it can be construed to be a contract of that character. The petition avers that defendant “has complied with the statutes of Ohio relating to foreign insurance companies.”
    The policy cannot be tortured into anything else than “an agreement between two parties whereby one agrees to indemnify and save harmless the other from loss or damage in connection with some particular transaction.” 16 Am. & Eng. Enc. Law (2 ed.), 168.
    We submit that the Walsh-Upstill Co. was not an insurance broker, and was not, as stated in Insurance Co. v. Wilson, 6 Ohio St., “agents intrusted with the business of taking risks upon property.”
    The second claim made by the plaintiff is that it was an “open policy,” to enable the plaintiff to insure anybody’s cargo. •
    We contend that it was a “valued policy” and not an “open policy.” This policy was not an open policy, but a valued policy. It is so stated in the policy itself, and is so stated by way of conclusion in the petition.
    In the petition it is averred that plaintiff duly reported such shipment as of a value of $3,990.72, and that the defendant insured plaintiff as agent for the R. P. Elmore Co. in that sum. Insurance Co. v. Butler, 38 Ohio St., 134
    We have, also, most excellent authority for the statement that his was a valued and not an open policy in Schaefer v. Marine Ins. Co., 33 Md., 109.
    The third contention of plaintiff is that it is a policy.“for themselves and whom it may concern.” And it was not required to have any insurable interest in the coal, as was the case in 6 Ohio St.
    That the policy was not “for whom it may concern” is shown by the policy itself, which states in positive language that it was issued: “On account of the Walsh-Upstill Coal Co., as per contract dated April 1,1897.”
    It is also evident that the only insured was the Walsh-Upstill Coal Co. upon property shipped by it as owner and as agent having a risk of loss or damage in the transportation of the coal, and differs essentially and in every particular from an insurance policy in which the property is insured “for whom it may concern.”
    That the words “for whom it may concern” are not in the policy is unquestioned. It is equally true that there are words of limitation in the policy clearly expressing the intent of the parties.- These words cannot be changed, nor can the intendment of the parties be changed by interpolating words. Nor can words in the contract be omitted, and thereby other meaning given to the stipulations of the policy. Certainly the words “at risk” cannot be omitted, and other words supplied or substituted. Snapp v. Insurance Co., 8 Ohio St., 462.
    The contract is plain and furnishes the best means of interpretation, and the intent of the parties can be readily ascertained from a reading of its provisions without resorting to other aids of construction. Insurance Co. v. Carnahan, 63 Ohio St., 272.
    And we submit that the plaintiff cannot, and the courts may not, enlarge and extend this contract or change it to one “for whom it may concern.” Thus in every essential as well as in the facts this case differs from Insurance Co. v. Wilson, 6 Ohio St., 559.

      Passing for the moment the words “at risk”' and their meaning in the policy, we submit that it is the person, and not the thing which is insured, and as Phillips states, section 174, “the peril or event insured against must be such that its happening might bring upon the insured pecuniary loss.” Wood on Fire Insurance (2 ed.), Sec. 263; May on Insurance, Secs. 72, 97 ; Gilbert v. Port, 28 Ohio St., 297; McDonald v. Black, 20 Ohio, 192; The City of Norwich, 118 U. S., 494; Manufacturing Co. v. Insurance Co., 10 Ohio St., 360.
    The Supreme Court distinctly authorized the position which we take in this matter. Hidden v. Insurance Co., 2 Cliff., 266.
    Under many circumstances the Walsh-Upstill Coal Co. could have an insurable interest as agent of their consignee. It is a very usual occurrence for a bill of lading to be issued to the consignee with draft attached, or without draft where the credit of the buyer is good. In such cases until actual delivery the consignor or seller has an insurable interest, and yet in delivering to the carrier he has parted with title to the goods and acts only as agent for his consignee. These instances might be multiplied, but a statement of law well settled in the carrying on of commerce should be sufficient for the purpose of demonstrating the intention of the parties to the contract of insurance. Ordinarily delivery to the carrier passes title to consignee. Elliott on Railroads, Sec. 1414; Hutchinson on Carriers, Secs. 720, 732; Benjamin on Sales, Sec. 181; Lawson on Contracts of Carriers, Sec. 224 ; Robinson v. Despatch Transit Co., 45 Ia., 470; Christenson v. Express Co., 15 Minn., 208.
    It was to protect itself against loss by risk taken to cargoes of coal in which they had a pecuniary interest as owner and as agent that they asked for and received this policy of insurance. And now, notwithstanding the limitation and the fact that they admit they had no pecuniary interest in any of this coal, and never had in that sold by the Morris company, they wish to have this converted into a policy insuring “for whom it may concern,” and have it cover the interest of the R. P. Elmore Co. as well as itself:

      Mr. Roger M. Lee, for defendant in error.
    We contend that, while Walsh-Upstill did not have an insurable interest in this cargo arising from ownership thereof, yet the R. P. Elmore Co., as owner, clearly had an insurable interest, that company made Walsh-Upstill its agents to ship this cargo and insure it under Walsh-Upstill’s open policy for the owner’s use, and, in the language of the Supreme Court of Ohio. Insurance Co. v. Wilson, 6 Ohio St., 559.
    And we further contend that the language of the insurance contract does make it applicable to just such a risk as this, that the words “sundry coal cargoes belonging to them and as agents” were inserted in the contract for the express purpose of making it cover just such risks as thisj and that the words “at risk” do not qualify the words “as agents.”
    We submit the following propositions and authorities, which constitute the law of this case, as we contend:
    (1) This action was properly brought by WalshUpstill as plaintiff.
    Section 4993, Revised Statutes, requires an action to be prosecuted in the name of the real party in interest, except as provided in sections 4994 and 4995.
    Section 4995 provides: “A person with whom or in whose name a contract is made for the benefit of another” may bring an action thereon without joining the beneficiary. Davis v. Harness, 38 Ohio St., 397.
    (2) A policy made in the name of a particular person “for whom it may concern,” or with any other equivalent .clause, will be applied to the interest of the party or parties for whom it is intended by the person effecting the insurance, if such party has authorized its being made beforehand or subsequently adopts it; and parol evidence is admissible to show for whose benefit the insurance was intended. 1 Phillips on Insurance, Sec. 383; Richards on Insurance, Secs. 131-132; Story on Agency, Sec. 161; Rider v. Insurance Co., 20 Pick., 259.
    (3) The language “all shipments belonging to them, or as agents” is equivalent to “for whom it may concern.” Hooper v. Robinson, 98 U. S., 528; 1 Phillips on Insurance, Sec. 409; Turner v. Burrows, 8 Wend., 144; Burrows v. Turner, 24 Wend., 276; Marine Ins. Co. v. Kearney, 16 A. & E. L., 925; Shawmut Sugar Refining Co. v. Insurance Co., 12 Gray, 540; Farrow v. Insurance Co., 18 Pick., 53; Davis v. Boardman, 12 Mass., 83; Waring v. Fire Ins. Co., 45 N. Y., 606; Daniels v. Insurance Co., 5 Fed. Rep., 425.
    (4) It is of no consequence that the Walsh-Upstill Go. did not inform Hutchinson & Go. that this insurance was for the benefit of the consignee.
    This is an elementary principle of the law of agency. Mechem on Agency, Sec. 796; Huntington v. Knox, 7 Cush., 375. Mr. Mechem cites a long list of authorities to the same effect.
    The circumstances were the same in Insurance Co. v. Wilson, 6 Ohio St., 553. It does not appear there that the agent communicated to the insurer, or its agents, for whom the insurance was intended. The Sydney, 27 Fed. Rep., 119.
   Crew, J.

Whether the judgment of the circuit court was erroneous, is in this case to be determined from, and is dependent upon the interpretation and effect proper to be given to the contract of insurance on which this suit Avas brought.

If, as contended by the defendant in error, the contract in suit is, because of the language therein employed, equally comprehensive with, and in legal effect the equivalent of an open cargo policy containing the phrase, “for themselves or whom it may concern,” whereby the Walsh-Upstill Co. Avas authorized to cover and insure either cargoes OAvned by it or cargoes shipped and insured by it as agent for the consignee but in which it had neither ownership nor interest, then the judgment of the circuit court was right. But if on the other hand the terms and provisions of said policy when rightly construed and interpreted arc such as to limit its application to cargoes of coal belonging to the Walsh-Upstill Co., or to cargoes shipped -by said company in which it had and held some pecuniary interest as owner or agent, then and in that event, the judgment of the circuit court was erroneous. The single question presented here for determination is, was this cargo of coal shipped by the WalshUpstill Co. to the R. P. Elmore Co. of Milwaukee, Wisconsin, covered by the policy of insurance on which this suit is brought? The answer must be found in the proper interpretation of the contract or policy itself.

It is conceded in this case that the Walsh-Upstill Coal Co., at the time it applied for insurance on this cargo of coal, Avas neither the owner of said cargo, nor had it any interest in the same as agent or otherwise. But it is claimed by defendant in error that although it had no ownership in the coal at the time of procuring the insurance, that it was the agent of the Elmore Co. in securing the insurance and shipping the coal and that by the terms of its contract under which the policy was issued, such policy cov.ered as well coal shipped by it as agent as that shipped by it as owner and that the words of the contract “covering all shipments of the following description of articles, viz.: sundry coal cargoes belonging to them and as agents, at risk,” etc., is in effect a contract and agreement to insure such cargoes of coal as should be shipped by it as owner, and also such as should be shipped by it as agent, although when shipped as agent it might be without interest in the cargo shipped. If this provision in said contract is the equivalent of, and carries with it the same legal interpretation as the phrase “for themselves or whom it may concern,” then under this policy the Walsh-Upstill Co. was, as claimed by defendant in error, authorized to cover not only such cargoes as were owned by it, but all cargoes shipped and insured by it as agent, by whomsoever owned. Such, we think, was not the intention of the parties to this contract, nor is such the effect and meaning proper to be given to the terms and provisions of the contract itself when rightly construed and interpreted. That it was not the purpose of the WalshUpstill Co. to procure a general authority to solicit and take risks or to cover by insurance all cargoes of coal that might be shipped by it whether interested therein or not, would seem to be evidenced by the language of its application to said insurance company for insurance. This application, the so-called “contract proposition,” recites that: “Insurance is wanted by the Walsh-Upstill Coal Co. covering all shipments of the following description of articles, viz.: Sundry coal cargoes belonging to them and as agents at risk,” etc. And the policy issued on this application by the Insurance Co. contained the recital that it was issued “on account of the Walsh-Upstill Coal Co. as per contract dated April 1, 1897,” etc. By this application insurance was requested by the Walsh-Upstill Co. only upon “cargoes belonging to them and as agents at risk,” and the policy issued covered only such cargoes. Insurance was not asked by the Walsh-Upstill Co., “for whom it might concern,” nor was it asked for or on behalf of the R. P. Elmore Co., who were the owners of this cargo and who alone were at risk in case of loss, but it was asked and obtained for and on account of the WalshUpstill Co., on cargoes belonging to them and as agents at risk. The parties to this contract of insurance are chargeable with knowledge of the law governing this character of insurance and it is, we think, under the facts of this case, fair to assume they were not without knowledge that in marine insurance it is a matter of common usage to issue policies “for whom it may concern” upon application made for that purpose. If it had been the ' purpose of the Walsh-Upstill Co. to obtain such a policy or to procure authority to act as agent for the Marine Insurance Co. in soliciting and taking risks, and if it had been the purpose of the Insurance Co. to constitute said Walsh-Upstill Co. its agent for that purpose, we may reasonably assume that the application and policy would have taken some such form. But the Walsh-Upstill Co. did not apply for such a policy nor did the Insurance Co. issue such an one, unless the words “belonging to them and as agents” in this policy, carry the same legal interpretation as the phrase “for whom it may concern.” The contract of marine insurance in its essential nature and in all its incidents is purely a contract of indemnity, hence ordinarily an insurable interest of appreciable value on the part of the assured in the subject of insurance is of the very essence of the right to recover upon such contract; if there is no interest there can be no loss, and if there is no risk of loss on the part of the assured there can be no valid contract of indemnity. This policy of insurance is not subject to the same construction and interpretation that might be given it, if the provision in question were made to read “for whom it may concern,” or if the policy were made to run to “A. B., as agent,” or “to C. & L. for the owners;” as was the form of policy in some of the cases cited by counsel for defendant in error, for in such case the policy itself would, on its face, clearly indicate and show that the person intended to be insured thereby, was a person other than the person making the application and to whom and in whose name the policy issued. But the contract we are considering, was not of that character, but was by its terms a personal contract between the Walsh-Upstill Co. and the Insurance Co. whereby the Walsh-Upstill Co. sought and obtained insurance for itself and on its own account, and not generally “for whom it may concern.” That the words “at risk” in this contract are there for some purpose and have some meaning must be presumed, and in the construction of said contract these words may not be omitted or disregarded nor may other words which change or enlarge the meaning of said contract, or change the intendment of the parties thereto, be substituted in their stead. Looking to their place and position in this contract, and taken in connection with the other .language and provisions thereof, we think these words “at risk” must be held to qualify, and were so intended, the words which immediately precede them and in connection with which they are used, viz.: the words “and as agents,” and so construed they are a limitation on the authority of the Walsh-Upstill Co., and restrict the application of this policy of insurance to such cargoes as belong to said Walsh-Upstill Co. as owner, or such as it has some interest and risk in as agent. The Walsh-Upstill Co. was a coal company doing business in Cleveland, Ohio, and engaged in the business of selling and shipping coal. The coal sold by it was sometimes delivered “free on board” vessels at Cleveland or other port of shipment and sometimes delivery was to be made at the port of destination, so that it might very well be in certain cases that the Walsh-Upstill Co., as consignor might have an insurable interest in a cargo of coal, the title to which had by delivery to the carrier, passed to the consignee. And to the extent of such interest it might have insurance under this contract and policy.

The case of Insurance Co. v. Wilson, 6 Ohio St., 553, cited and relied upon by defendant in error, is clearly distinguishable from this case. In that case Wilson & Co. were insurance brokers and were acting for the Protection Insurance Co. The syllabus in that case is as follows: “Insurance brokers, holding an open policy of insurance for themselves and whom it may concern, may, in case of damage to property covered by their policy, maintain, in their names, an action for the use of the owners, although the latter are not named in the policy, if it sufficiently appear that the insurance was procured for their benefit.”

Bowen, J., announcing the opinion in that case, speaking of the authority of Wilson & Co., and the •character of their policy, said: “They had been •agents intrusted with the business of taking risks upon property against the perils of transportation, of fire and of thieves. For the purpose of executing this agency they received from the insurance company an open policy “to themselves or whom it might concern,” etc. So that in this case the policy itself was one “for whom it might concern” and clearly showed that Wilson & Co., in whose name it issued, were not required to have any beneficial interest in property that might be covered by it. While the policy issued to the Walsh-Upstill Co. covered only property belonging to it, or in which as agent it had some risk. We are of opinion that under the admitted facts of this case, the cargo of coal lost was not covered by the policy of insurance on which this suit was brought, and therefore that no recovery can be had on said policy, because of the loss of said cargo.

Judgment of the circuit court reversed and judgment for plaintiff in error.

Spear, Shauck and Price, JJ., concur.

Davis, J.

I concur in the syllabus and in the judgment; but I do not concur in all of the reasoning by which the conclusion is reached in the opinion. The question to be determined in this lawsuit is who is insured, not what is insured. The words “at risk” define the property to be insured and not the person, and they are customarily used for that purpose. I regard it as both bad law and bad grammar to construe this phrase as qualifying the term “agents” instead of “cargoes.” I therefore, for the purposes of this controversy, construe only so much of the application, or, as it is here called, the contract proposition, as precedes and includes the word “agents.” It recites that insurance is wanted for the Walsh-Upstill Co. Expressio unius est exclusio alterius. Therefore insurance was not asked for nor issued for anybody else. It was requested and issued upon cargoes “at risk, etc.,” belonging to the Walsh-Upstill Co. as principal “or as agents;” but when it is a conceded fact that the particular cargo in question did not belong to the Walsh-Upstill Co. as agents or otherwise, it seeras to me to be a very violent construction of the contract which would permit them to insure the cargo which did not belong to them for the use and benefit of strangers to the contract to whom it did belong. And it would in my opinion be a still more violent strain upon the law to allow such owners to recover as beneficiaries in the name of the Walsh-Upstill Co. Such procedure would be essentially a fraud upon the Insurance Co. and is not justified by any fair interpretation of the language of the contract proposition.

Bijrket, C. J., concurs in the above.


author: Price, J.

text:
    Coffinberry v. The Sun Oil Co.

      Oil and gas lease — Action by lessor against lessee or assignee— Failure of lessee to drill wells as agreed — Neglect to protect lines of leased property — Migratory nature of oil — Runs from lessor’s land to adjacent land — Loss to lessor — No remedy at law — Action for cancellation of lease — Specific performance — Equitable proceedings — Law of contracts.

    1. Where a petition filed by the lessor and owner of'land, consisting of about one hundred and sixty acres, against the lessee or his assignee of the lease, on or about January 8, 1901, alleges in substance, that the plaintiff, lessor, on or about Maiy 29, 1890, executed said lease for a term of five years and as much longer as oil or gas should be found in paying quantities, whereby the lessee obtained the exclusive right to produce oil and gas on the leased premises; and that the lease further provides that one well should be completed thereon within one year from the daite of the lease, which condition has been complied with and a paying well completed; and which further alleges that the lessee covenanted that if the first well should be a paying well, he would drill as soon thereafter as he could reasonably do so, a sufficient number of wells to fully develop said lands, and deliver to the lessor one-sixth of all the oil produced therefrom; and that the lessee, after taking possession and completing the first well assigned the lease to the defendant, who took possession and drilled two additional wells, the three being in one corner of the premises, and also drilled two wells on one side thereof, and all paying wells, and being completed prior to July, 1898; and further, that defendant has ever since refused and still refuses to further drill and develop or test said lands for oil or gas, or permit the plaintiff, lessor, or any one for him to do so; and which further alleges, that the defendant neglects to protect the exterior lines of the leased premises from several producing oil wells, already drilled and in operation on lands of others adjoining lands of the plaintiff; and that to properly develop the leased premises, at least twenty-six additional wells should be drilled thereon, which could have been done within three years from the daite of the lease; and that owing to the migratory nature of oil and the impossibility of proving the presence and amount of oil in the lands except by drilling, plaintiff has no adequate remedy at law — such petition states a good cause of action for the cancellation of the lease as to the undrilled portion of the premises, and it is error to sustain a general demurrer thereto and dismiss the petition of the plaintiff.
    2. Upon a cause of action, containing such facts, followed by a prayer for specific performance, and a further prayer in the alternative, “for such other and further relief in the premises as equity and good conscience require,” a court of equity may decree the cancellation of the lease as to the undrilled . portion of the leased premises in lieu of specific performance.
    (Decided June 16, 1903.)
    Error to the Circuit Court of Wood county.
    The plaintiff in error, as plaintiff in the lower court, on January 8,1901, filed the following amended petition:
    “The plaintiff, Henry D. Coffinberry, is the owner of the following lands: The south half (%') of the southwest one-fourth (%) of section eighteen (18) and the north half (%) of the northwest one-fourth (%) of section nineteen (19) in Portage township, Wood county, Ohio, and containing in all about one hundred and fifty-eight (158) acres. On May 29, 1890, James M. Coffinberry, the father of plaintiff, and from whom he derives his title, was the owner of said lands, and on that day executed and delivered to Robert Miller a lease of said lands in which they were designated as being bounded on the north by lands of William Kinney and C. W. Simmons; on the east by lands of Robert Miller and George Daughterman; on the south by lands formerly owned by Larwill and Ensminger, and on the west by lands of Robert Miller and William Kinney, and containing one hundred and fifty-eight (158) acres, more or less, a copy of which lease is hereto attached and made a part hereof.
    “By the terms of said lease, said James M. Coffin-berry granted to said Robert Miller the exclusive right to produce petroleum and gas on.said lands for the period of five years from the date thereof and as much longer as oil or gas should be found in paying quantities thereon.
    “As the consideration for said right and privileges, the said Miller agreed and promised to deliver to said lessor, his heirs and executors, the one-sixth (1-6) of all the oil which might be produced on said lands; and should gas be found therein in sufficient quantities to justify marketing the same, to pay to the lessor the sum of one hundred dollars ($100) per annum for the gas from each well, so long as gas could be sold therefrom.
    “Said Miller further agreed in said lease to complete a well on said lands within one year from the date of said lease, or to pay for further delay a yearly rental of one hundred and sixty dollars ($160) until such well should be completed.
    “Said Miller further agreed that if said first well should be a paying well, he would drill, as soon thereafter as he reasonably could do so, a sufficient number of wells to fully develop said lands.
    “Said Miller took possession of said lands under said lease and within one year from the date thereof drilled the first well thereon mentioned in said lease, which proved to be a paying well, and afterward undertook to sell and transfer said lease to the defendant, a corporation which took possession of said lands and is still in possession thereof.
    “There have been drilled on the first tract above described, three wells and no more, which wells are located in the northeast corner of said tract, produce oil in paying quantities, and were drilled at the following times: One in April, 1892; one in November, 1893; one in August, 1894.

      “There have been drilled on said second tract of land above described, two wells and no more, which are located on the east side thereof, and the same were drilled as follows: One in June, 1893, and one in June, 1898, and both of which produce oil in paying-quantities.
    “There have been drilled on lands adjoining plaintiff’s said lands, and within an. average of 200 feet from the exterior lines of his said lands, nine wells, seven of which are now being operated and are producing oil in paying quantities; so that plaintiff’s lands are not properly protected against drainage of oil therefrom through wells on adjoining lands.
    “The defendant has operated and still operates said wells at irregular intervals, but refuses to operate the same regularly.
    “The sole object and purpose of said James M. Coffinberry in granting said lease and rights and privileges, was to have said lands properly tested, drilled, developed and operated, to the end that he and his successors in the title might receive and have the benefit of the one-sixth of the oil underlying said lands and the gas rentals prescribed in said lease, if gas should be found therein; that the one:sixth of the oil underlying said lands, and of.which plaintiff is deprived by reason of the conduct of the defendant complained of in this petition, is exclusive of interest and the costs of this action, of the value of not less than $3,000.
    “In order to properly test and develop said lands for oil and gas purposes, there should have been, and still should be, at least twenty-six additional wells drilled thereon. That the time required for drilling and completing a well on said premises is less than thirty days, so that all of said wells necessary to a proper and reasonable development of said lands could reasonably have been drilled, and should have been drilled within three years from the date of said lease. The defendant not only refuses to drill such additional wells or any of them, but refuses to permit the plaintiff or any person authorized by him, to drill upon the undeveloped portion of said lands; unlawfully and wrongfully claiming the right to hold and control all of said lands without further development and without compensation to the plaintiff other than the very small royalty which he receives from the irregular operation of the wells now located thereon, and which amounts on the average to about $30 per month.
    “The defendant in fraud of the rights of the plaintiff, neglects and refuses to drill any further wells on said lands or to protect the same from drainage through adjoining lands, and fraudulently deprives the plaintiff of the emoluments and profits contemplated and intended by the parties to said lease, and to which he is by its terms entitled.; which emoluments and profits of which plaintiff is to be deprived are exclusive of interest and the costs of this action, of the value of not less than $3,000.
    “That by reason of the facts above stated the plaintiff is effectually prevented from receiving the benefits and emoluments which would result to him from a proper development and operation of said lands for oil purposes to his great damage and injury.
    “The plaintiff has no remedy at law whereby he can be adequately or fairly compensated for said damage and injury for the reason that it is impossible to determine the amount of oil which has been in said lands during the existence of said lease; or which is now therein; or how long the same may or may not remain therein; said oil being not stable and permanent in its location, but fleeting and transitory in movement, and liable to escape into other lánds upon which operations for the extraction of oil are being conducted.
    “That plaintiff has opportunities to, and would lease said lands for oil purposes to other persons who would properly develop and operate the same, were he and they not prevented from so doing by the aforesaid wrongful and unlawful claims of the defendant, which constitute and are a cloud upon the plaintiff’s title to said lands and a bar to his possession and enjoyment thereof.
    “He therefore prays: (1) That the defendant be required, upon proper conditions to be prescribed by the court, to regularly and properly operate said wells. (2) That the defendant be required to drill the number of wells required to properly develop said lands in accordance with the terms of said lease, or to permit the plaintiff to operate the undeveloped portion of said premises. (3) That he may have such other and further relief in the premises as equity and good conscience require.
    “Troup & Ramsey, Plaintiff’s Attorneys.”
    The defendant demurred generally to this petition, which demurrer was sustained by the court of common pleas. On appeal to the circuit court, the demurrer was there sustained and the amended petition dismissed. Error is prosecuted in this court to reverse the judgment of the circuit court.

      Messrs. Troup & Ramsey and Messrs. Troup & Truesdale, for plaintiff in error,
    cited and commented upon the following authorities:

      Blair v. Peck, 1 Penny., 247; Harris v. Oil Co., 57 Ohio St., 118; Colgan v. Oil Co., 194 Pa. St., 234;
      Young v. Oil Co., 194 Pa. St., 243; 1 Story on Equity, Sec. 717; Oil Co. v. Blair, 113 Pa. St., 83; Burnley v. Stevenson, 24 Ohio St., 474; Hall v. Warren, 9 Ves., 608; Rogers v. Saunders, 16 Me., 92; King v. Hamilton, 1 O. F. D., 362; 4 Pet., 311; 22 Am. & Eng. Enc. Law, 914; Cathcart v. Robinson, 5 Pet, 264; Green v. Railroad Co., L. R. 13 Eq., 44; Stuyvesant v. Mayor, 11 Paige, 414; Joy v. St. Louis, 138 U. S., 1; Railway Co. v. Railway Co., 47 Fed. Rep., 15; Palmer v. Graham, 1 Pars. Eq., 476; Harrison v. Gardner, 2 Madd., 198; Williams v. Williams, 2 S. W. Rep., 823; Seymour v. Detroit Rolling Mill Co., 56 Mich., 117; Moore v. Curry, 112 Mass., 13; Townsend v. Hurst, 37 Miss., 679; Munsey v. Butterfield, 133 Mass., 492; Kelly v. Oil Co., 6 Circ. Dec., 470; 9 C. C. R., 511; London & N. W. Am. Mtge. Co. v. McMillan, 80 N. W. Rep., 841; Evans v. Miller, 36 N. W. Rep., 640; Galloway v. Campbell, 41 N. E. Rep., 597.

      Messrs. Baldwin & Harrington, for defendant in error,
    cited and commented upon the following authorities:

      Harris v. Oil Co., 57 Ohio St., 118; McKnight v. Kreutz, 51 Pa. St., 232; 2 Beach on Contracts, Sec. 1765; Maud v. Maud, 33 Ohio St., 147; Bentley v. Miller, 9 Circ. Dec., 851; 18 C. C. R., 865; Ohio v. Baum, 6 Ohio, 383; 2 Beach on Contracts, Sec. 879; Colgan v. Oil Co., 194 Pa. St., 234; Young v. Oil Co., 194 Pa. St., 243; Blair v. Peck, 1 Penny., 247; Oil Co. v. Blair, 113 Pa. St., 83; Commissioners v. Noyes, 35 Ohio St., 201; 1 Kinkead on Pleading, Sec. 607; Gillett v. Treganza, 13 Wis., 472; Wright v. Dame, 39 Mass., 55; 18 Am. & Eng. Enc. Law (2 ed.), 671; Brewer v. Dyer, 7 Cush. (Mass.), 337; 22 Am. & Eng. Enc. Law (2 ed.), 1006; Railroad Co. v. Babcock, 3 Cush. (Mass.), 228; Grace v. Denison, 114 Mass., 16; Sturgis v. Galindo, 59 Cal., 28; Blanchard v. Railroad Co., 31 Mich., 43; Odell v. Morin, 5 Ore., 96; Railroad Co. v. Railroad Co., 13 Ohio St, 544; 2 Story’s Equity (12 ed.), Chap. 19; 21 Am. & Eng. Enc. Law (1 ed.), 46.
   Price, J.

It is a familiar rule of practice, that a general demurrer admits all facts which are properly pleaded, and for the purpose of testing the cause o£ action set out in the amended petition, the defendant by such demurrer, confesses the truth of the proper averments of that pleading.

Looking to the facts alleged, it is seen, that by' the terms of the oil lease, there is but one condition upon which the lessor could declare a forfeiture of the lease, and that condition is that there should be a well completed by the lessee on the premises within one year from date of the instrument,, or he should pay lessor one hundred and sixty dollars per annum for each year such well should be delayed.

This condition was complied with and one well was. completed, so that from that point forward, there are no provisions by which the landowner may declare and enforce a forfeiture.

The other and material provision now is, that “if the first well shall be a good paying well, the tenant should drill a sufficient number of wells to fully develop said territory as soon as he reasonably can do so.”

It is alleged that the first well produced oil in paying quantities, and that the defendant, coming into •possession and taking the place of the lessee as to the terms of the lease, drilled, two more paying wells, these three being in the northeast corner of one tract, the last of the three having been completed in August, 1894; and that it drilled two paying wells on the east side of -the other tract, one in June, 1893, the other in June, 1898.

Near the exterior line of these premises, wells have been drilled on adjoining lands, which tend to drain oil from the premises of plaintiff, and against which defendant has drilled no protecting wells. This condition of the premises, without effort to further test and develop the territory, had continued for several years before this action was commenced, and the defendant refuses to drill more wells, and refuses to permit the plaintiff or any one for him, to drill and test the balance of the farm. It is charged also, that the defendant is neglectful of the five wells, and operates them at irregular intervals.

Does the case stated in the petition entitle the plaintiff to any relief? If so, what shall it be? The plaintiff, by the terms of the lease, contemplated a fair and reasonable test of all his farm, and did not intend to incumber it with that instrument placed on record, merely to have one corner drilled, and two wells completed on one side of the premises; nor could the lessee or his assignee so understand the obligations therein created.

The case made against the defendant is one of persistent obstinacy and disregard of plaintiff’s rights without any disclosed excuse. He has submitted to the wrong for several years, and sees no sign of a change of conduct on the part of the defendant.

We have no doubt that he states facts which entitle him to some relief in the courts.

He further says he has no adequate remedy at law, because of the transitory nature of oil, and the impracticability of proving the presence or amount of oil in his premises. In other words, a remedy in damages cannot be established. This is admitted, not only by the demurrer, but also in the brief filed for defendant in error. Furthermore, that brief admits and concurs in plaintiff’s claim, that for the same reasons, compensation cannot be made by the court, 'in lieu of specific performance. Yet, the defendant contends against specific performance which is prayed for, and urges, as no doubt was urged in the lower courts, that the subject matter of the controversy, is not such as to justify the court in making a decree of that character. It may be that the lower courts held against the plaintiff on his petition, because a decree of specific performance would not close the controversy; that to compel the defendant to drill and test the territory would imply the retention of the case for supplemental orders and other proceedings -which might become necessary in administering that form of relief. That view may be correct, and'-this court does not differ from the lower court on that point. But that view is no reason for sending the plaintiff out of court empty handed.

The question on the demurrer was not, necessarily, whether or not, the plaintiff states a case which warrants, or requires, the court to decree specific performance of the terms of the lease, as asked in the first branch of the prayer; but is a cause of action stated which entitles him to relief in any form within the jurisdiction of the court, and consistent with the facts alleged?

It is a familiar rule, for which we have numerous precedents, that the ordering of specific performance is in some measure within the sound discretion of the court where it is asked, and there are many cases which disclose circumstances of inequality, hardship, or other considerations which lead' to a refusal of the specific relief, and yet adequate justice is done in some other form in the same case, in order to avoid other actions and settle the rights of the parties. In some instances courts of equity, owing to the peculiar facts of the case on trial, have decreed performance in part and made compensation as to the remainder; and in others, have refused the specific relief entirely, and made such decree as justice and equity would sanction. This is not a new doctrine of practice in actions at law, and certainly not in cases in equity.

In Tiffin Glass Co. v. Stoehr, 54 Ohio St., 157, this court held the following rule of practice: “Where, on the facts stated in a petition, a plaintiff is entitled to a judgment for money, the fact that in his petition he claims the amount to be due him as wages on a contract of employment, instead of as damages for the breach of it, is not material to his right of recovery. A misconception of this kind must be disregarded in passing judgment upon the pleading.”

In the course of the opinion on page 163, Minshall, J., says: “Under the liberal principles of our code, it can make no difference what he termed the number of dollars he conceived himself entitled to recover, provided that on the facts stated, he was entitled to recover something. The judgment rendered was in fact for damages and not for wages; it was for what the plaintiff lost by the breach of the contract by the defendant. The plaintiff then did not mistake his remedy. He had but one, the civil action of the code. This simply required a statement of the facts on which he conceived himself entitled to a recovery of money from the defendant. The petition conformed to this requirement, and stated a cause of action. A prayer for relief is no part of a cause of action.”

Again, in Railway Co. v. Reynolds, 55 Ohio St., 370, this court held to the same effect: The defendant in error in that case sued for breach of a contract in the form of a ticket for passage on the railroad, and-stated all the facts in his petition, and the recovery was for damages in ejecting him from the train. The recovery was affirmed in this court, the holding being that the facts showed a right of recovery for tort, and not merely a breach of contract.

Still later, in Kerr v. City of Bellefontaine et al., 59 Ohio St., 446, an action to recover for machinery and appliances sold and delivered to said trustees for use of the gas works, it is held in the fourth branch of the syllabus: “A petition alleging a sale and delivery by plaintiff to such trustees of machinery and appliances for the use of such works and the nonpayment of the purchase price therefor, though not alleging facts sufficient to entitle him to recover a judgment at law against the municipality, does allege a cause of action for the equitable appropriation of so much of the funds which have accrued or may accrue from the operation of the works as may be necessary to satisfy his just demand.”

These citations are quite sufficient. We have said that the petition does state facts which entitle the plaintiff to equitable relief. What shall it be?

We are of the opinion that, if on the trial of this case, the averments of the petition are sustained by sufficient evidence that in lieu of a decree for specific performance, the lease as to all undrilled lands of the plaintiff should be cancelled and the cloud thereof removed, and that such would be the proper decree to make on the facts alleged in the petition.

The judgment of the circuit court is reversed; the demurrer to' the amended petition is overruled, and the cause is remanded to the circuit court for further proceedings according to law.

Judgment reversed.

Btjrket, C. J., Spear, Davis and Shauok, JJ., concur.


text:
    Smith v. Rhodes and Wilt.

      Expense account of administrator filed in probate court — Amount due attorney for services — Approved and ordered paid by court — Failure to pay is breach of duty — Making administrator’s bond liable — No defense by surety that creditors except to final account of administrator.

    1. Where the administrator of an estate, is required by the probate court to file an account of the expenses of his administration, preparatory to his stating a final account, and does so, which expense account includes an amount due his attorney for services rendered in the settlement of the estate, and for necessary expenses paid by him in discharge of his ' duties as such attorney, and said account, on hearing by that «ourt, is approved and allowed, and •the administrator is ordered by the court to pay to said attorney the sum so found due him out of the assets of the estate in his hands for distribution, a failure to comply with such order is a breach of the administration bond for which the surety thereon is liable. Thomas, Admx., v. Moore, 52 Ohio St., 200, distinguished.
    2. It is no defense to the action on the administration bond for the surety to plead and prove, that exceptions to the account •of the administrator, filed by a creditor of the estate, had been withdrawn by him in consideration of the part payment of his claim by the administrator.
    (Decided June 16, 1903.)

      Error to the Circuit Court of Sandusky county.
    On February 13, A. D. 1875, George F. Wilt, one of the defendants in error, was appointed administrator of the estate of his father, Harrison Wilt, deceased, which appointment was accep'ted and letters of administration were duly issued.,. The administrator gave bond which was approved, in the sum of $4,000 conditioned according to law, with J. F. Smith, plaintiff in error, as one of his sureties. Having so qualified he entered upon the duties of his trust.
    One of the provisions'of said bond is: “Fourth: Shall pay. any balance remaining in his hands upon the settlement of his accounts to such persons as said court or the law shall direct.”
    The estate became involved in protracted litigation in the federal courts, in which J. H. Rhodes, defendant in error, was employed as attorney for the administrator, and he acted in that capacity in that litigation, and also rendered such other legal services as were, desired by the administrator.
    In August, 1880, the administrator filed an account, which showed assets in his hands amounting to $1,223.85. This account was approved. On May 3,; 1897, the probate court ordered the administrator to “file forthwith an account of all expenses of administration preparatory to filing an account of distribution on order of court. 7
    On May 12, 1897, the administrator filed an account of the expenses of administration, being for the administrator personally, $782.50, and for his attorney, J. H. Rhodes, $527.25. These expenses were itemized, showing in detail the nature and amount of each item.
    Mrs. E. K. Byrnes, one of the creditors of the estate, filed exceptions to the account of the ad ministrator, which were afterwards withdrawn, and on • October 11, 1897, the expense account was “approved and confirmed as presented and filed;” and the administrator was ordered to file his final settlement without delay, which was done on October 26, 1897. Due notice was given of the pendency of this account by' publication, and after several continuances, the account came on for hearing on March 22, 1898. No exceptions were filed and the court made the following finding and order:
    “In the matter of the estate of Harrison Wilt, deceased. March 22, 1898. Final account confirmed.
    “Notice of the time for hearing and settlement of the final account of George F. Wilt, administrator of the estate of said Harrison Wilt, deceased, having been duly published according to law and there being no exceptions thereto, pending, it was this day examined, found correct, approved, allowed and confirmed by the court. And the court finds the sum of $1,-223.85 in the hands of said administrator belonging to said estate, and that there is due to J. H. Rhodes for attorney’s fees and moneys advanced to pay necessary expenses for said estate, the sum of $527.25 as heretofore found by the court on the hearing of the expense account of said administrator.
    “It is therefore ordered that of said sum of $1,-223.85 so in his hands, said administrator pay the costs herein taxed at $7.50; to said J. H. Rhodes, said sum of $527.25, and that the balance in his hands, $688.70, is hereby allowed to him to apply on his bill of $782.50 as allowed him on the hearing of said expense account. And said administrator is ordered to report the vouchers for the payments and allowance hereinbefore ordered to this court.
    “Samuel Brinkerhoff, Probate Judge.”

      The administrator paid J. H. Rhodes, the attorney, the sum of $50, but failed to. pay the balance found due him, and after demand upon' the administrator, and upon the plaintiff in error as surety on the bond, for the balance, suit was brought in the court of common pleas upon the administrator’s bond, in which breach of the bond was alleged in not complying with the foregoing order of the probate court.
    The surety, now plaintiff in error, answered, admitting his suretyship on the bond and that said George F. Wilt became administrator, and denied each and every other allegation in the petition.
    The answer of the administrator is similar, with the additional averment, that if the probate court made the order referred to, it was made without authority of law, and is void.
    The cause was tried to a jury, and the plaintiff in error excepted to the ruling of the court excluding testimony offered, and also to refusing him,leave to amend his answer, during the progress of the trial so as to render competent the testimony excluded.
    The jury found for the plaintiff Rhodes the amount of his claim, and the court refused a new trial and rendered judgment on the verdict.
    The circuit court affirmed the judgment and error is prosecuted in this court to obtain a reversal of the judgments of the lower courts.

      Mr. George H. Withey and Messrs. Hunt & DeRan, for plaintiff in error,
    cited and commented upon the following authorities:

      Thomas v. Moore, 52 Ohio St., 200; Curtis v. Bank, 39 Ohio St., 579; Lucht v. Behrens, 28 Ohio St., 240; Kinkead’s Prob. Law and Prac., Sec. 299; Cornthwaite v. Bank, 57 Ind., 268; Rittenhouse v. Ammer

      man, 64 Mo., 197; Judson v. Gray, 11 N. Y., 408; Austin v. Munro, 47 N. Y., 360; Quinby v. Walker, 14 Ohio St., 193; Flickinger v. Saum, 40 Ohio St., 602; Gilbert v. Gilbert, 7 Circ. Dec., 58; 13 C. C. R., 29; Secs. 6209, 6216, Rev. Stat.

      Mr. S. S. Richards and Mr. J. H. Rhodes, for defendants in error,
    cited and commented upon the following authorities:

      Mellen v. West, 3 Circ. Dec., 46; 5 C. C. R., 89; Secs. 6006, 6090, 6188, Rev. Stat.; Allen v. Allen, 18 Ohio St., 237; Whiteley v. Webber, 1 Circ. Dec., 517; 2 C. C. R., 336; Mighton v. Dawson, 38 Ohio St., 650; State v. Cutting, 2 Ohio St., 1; Gandolfo v. Walker, 15 Ohio St., 251; Gilbert v. Gilbert, 7 Circ. Dec., 58; 13 C. C. R., 29; Slagle v. Entrekin, 44 Ohio St., 637; Braiden v. Mercer, 44 Ohio St., 339; Foster v. Wise, 46 Ohio St., 20; Garver v. Tisinger, 46 Ohio St., 56; Gardner v. Ashbrook, 53 Ohio St., 678; 34 W. L. B., 287; Pennie v. Roach, 94 Cal., 515; In re Couts, Estate of, 87 Cal., 480; Hoffman v. Fleming, 66 Ohio St., 143.
   Price, J.

The parties to this proceeding submitted their controversy to a jury, and we assume that it was properly instructed by the court, inasmuch as the charge is not found in the printed record, nor is fault found with it in the brief for plaintiff in error.

Complaint is made that the trial court erred in excluding evidence offered by the defendants below, and also erred in not permitting them to amend their answers during the progress of the trial.

The action was against George F. Wilt as principal, and the plaintiff in error as his surety on the administrator’s bond. The record shows that in attempting to make out their defense to the action brought by Rhodes, the defendants propounded to the administrator, Wilt, certain questions to elicit from the witness, what if any consideration was paid to any one to induce the withdrawal of the exceptions which had been filed to his account as to expenses- of administration. The court permitted inquiries as to any amount which had been paid' to plaintiff Rhodes, but refused to admit testimony as to what, if anything, had been paid to the excepting creditor, or any one else. When the court sustained objections to such inquiries, no statement was made of what the expected proof would be, and as it occurred during the examination in chief, the ruling of the court is not reviewable in the absence of such statement. The rule requires a profert of the desired evidence, in order that a reviewing court can determine whether or not the action of the trial court was prejudicial.

However, if we may glean from the current of the examination what counsel for defendants desired, it would appear that such inquiries were properly shut out. The judgment and orders of the probate court, could not be thus impeached." In that court, the party excepting to the administrator’s account, had a right to withdraw the exceptions at any time before final submission, and that was done, and at a later date, the account was approved and settled. The administrator was well aware of what had been done, and ■it would seem that such withdrawal was entirely satisfactory to him, as it was his account that had been assailed. Several months intervened between the withdrawal of the exceptions and the final order. No other objections were made. The surety on the bond was not a party to that proceeding, and he had no right to be. He undertook to secure the performanee of duties and obligations imposed on the administrator, and after the probate court had settled the account, to which no objection existed, we think, the surety, when sued upon the bond, cannot inquire into the motives or consideration which led to the withdrawal of objections to the account.

These remarks dispose of the other complaint, that the defendants were not allowed to amend their answers. Counsel informed the trial court that they desired to so amend the answers as to make the excluded evidence competent; but no amended answer was tendered to the court to act upon, for we find none in the record. Stating what was desired as an amendment was not sufficient. However, if an amendment had been tendered, containing the averments orally disclosed to the court, it would have been irrelevant, and the tender of an immaterial issue as already stated.

It is also claimed, that the plaintiff in error is not liable as surety on the bond of the administrator, for the services rendered by Rhodes as attorney of such administrator, because they are not a debt against the estate, hut against the administrator personally. Counsel for plaintiff in error, state their position as follows: “Can the surety on an administrator’s bond be held liable to the attorney of the administrator for services performed for the administrator as such, or is the failure of the administrator to pay his attorney fee, a breach of the conditions of the bond? We think not.”

To support their decision' on the question as they put it, they cite Thomas, Admx., v. Moore, 52 Ohio St., 200. That was an action brought before a magistrate by Moore, as the surviving partner of the firm of McKnight & Moore, against Elizabeth J. Thomas, as administratrix, to recover for legal services rendered her by that firm. The bill of particulars stated the services were performed at her request-in various suits' brought by find against hér as such administratrix. . '

Judgment was obtained in the justice’s court for the amount sued for, and the defendant gave notice of appeal, and filed a duly certified transcript, but gave no appeal bond. In the court of common pleas the appeal was dismissed for want of an appeal bond, the court holding the appeal was not in the interest of the trust she represented. This court, in reviewing and affirming the. order of dismissal, laid down this rule: “Executors and administrators are personally liable for the services of attorneys employed by them, but their contracts therefor do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the executor or administrator may properly pay for, and receive credit for the expenditure in the settlement of his accounts.”

That case is used to show, that the administrator or executor may not be allowed' in his settlement the full amount he has actually paid his attorneys, but only such amount, as he shows was reasonable compensation for the services rendered. We think that case was correctly decided; but how does it relieve the surety in this case? It is true that Wilt, the administrator, had paid but a small part of the attorney’s fees, but, as shown in the statement of this case, he was required by the probate court to file an account of the expenses of administration preparatory to the filing of his final account. This was done, and due notice by publication was given of the filing and pendency of the expense account, which was heard on a day to which its hearing had been adjourned. The itemized hill of Mr. Rhodes for attorney fees was before that court, and we must assume that sufficient legal proof of the nature and value of the services rendered was made. The court approved the account as to the expenses of the administrator and his attorney as separately stated. Then came the final account and order of distribution, wherein the administrator was ordered to pay out of the assets in his hands, the amount found due the attorney, and from the balance to pay his own expenses as allowed. The administrator paid Rhodes $50 and no more, and on refusal to pay as ordered by the probate court, the action was brought on his bond.

The probate court examined and approved the expense account in advance of its payment. That court had all the light on the facts, that could have been shed, on an examination of a claim for reimbursement, had the administrator paid the attorney in advance, and taken credit for the same in his account. In this instance the attorney fees were examined and. approved in advance of payment, and on final account, ordered paid from the assets of the estate. The subject had been fully adjudicated and ended. We think the probate court had authority to do this. Section 6188 of Revised Statutes, after fixing the ordinary compensation for executors and administra tors, provides that “in all cases such further allowance shall be made as the court shall consider just and reasonable for actual and necessary expenses, and for any extraordinary services, not required of an executor or administrator, in the common course of his duty * *

Section 6090 provides as to the order of paying debts that, “First, the funeral expenses, those of last, sickness, and the expenses of administration.”

Section 524 gives the probate court exclusive jurisdiction “to direct and control the conduct and to settle the accounts of executors and administrators, and to order the distribution of estates.”

The administrator, Wilt, was ordered to make distribution, a part of which order was that he pay to Rhodes, the attorney, the sum of $527.25 before that time found by the court to be due him. This was an order which the court had power and was authorized to make, and it was binding upon the administrator and his sureties. A failure to comply with it was a breach of his bond for which the sureties are liable.

The bond involved, provides, among other things, that the administrator “shall pay any balance remaining in his hands upon the settlement of his accounts to such person as said court or the law shall direct.” The amount so found in his hands and the order to pay the same, in the absence of fraud and collusion, are conclusive not only upon the administrator but also upon his sureties,'unless reversed on. error or vacated by appeal.

As supporting our views in this case, see Slagle v. Entrekin, 44 Ohio St., 637; Braiden v. Mercer, 44 Ohio St., 339; Foster, Admr., v. Wise, Admr., 46 Ohio St., 20.

The .judgment of the circuit court is free from error, and is affirmed.

Judgment affirmed.

Bürket, O. J., Spear, Davis, ohauck and Crew, JJ., concur.


author: Shauck, J.

text:
    The Cincinnati, Hamilton & Dayton Railway Co. et al. v. The City of Troy.

      Appropriation of property of railroad — To extend street under its trades — Railroad company entitled to compensation for building necessary bridge.

    la a proceeding to appropriate the property of a company owning an existing railroad for the purpose of extending a street under its tracks, such company is entitled to compensation for the cost of a bridge or viaduct to carry its trains over the street.
    (Decided June 16, 1903.)
    Error to the Circuit Court of Miami county.
    A proceeding by the City to appropriate property for the extension of McClung street across the railroad owned by the Dayton & Michigan Railroad Co. and operated and held under lease by the Cincinnati, Hamilton & Dayton Railway Co., was tried in the court of common pleas for the determination of compensation and damages. At the point of intersection of the railroad company with the proposed street the railroad had been constructed upon a high fill so that the proposed improvement would require the trains to be carried over the street upon a bridge whose construction it was admitted would be made necessary by the proposed extension of the street. The jury returned a verdict as follows:
    “For land taken for said street from out-lot No. 19..........................$ 125.00
    For damages to residue of said outlot and for crossing said railroad right of way................................ 75.00
    Damages for construction of viaduct over said street at said crossing........ 6,117.00
    Total assessment 16,317.00”

      A motion for a new trial having been overruled judgment followed the verdict. The City filed a petition in error in the circuit court where the judgment was reversed because in the opinion of that court the judge of the common pleas court had erred in charging the jury. The substance of the charge is stated in the opinion.

      Mr. R. D. Marshall; Mr. A. F. Broomhall and Mr. A. McL. Marshall, for plaintiffs in error,'
    cited and commented upon the following authorities:

      Railway Co. v. Longworth, 30 Ohio St., 108; Railway Co. v. Fostoria, 4 Circ. Dec., 602; 7 C. C. R., 293; Hatch v. Railroad Co., 18 Ohio St., 92; Giesy v. Railroad Co., 4 Ohio St., 308; Railroad Co. v. Ball, 5 Ohio St., 568; Railroad Co. v. Collett, 6 Ohio St., 182; French v. Millard, 2 Ohio St., 44; Schneider v. Hosier, 21 Ohio St., 98; Railroad Co. v. Slusser, 19 Ohio St., 157; Clark v. Clark, 8 Circ. Dec., 752; 16 C. C. R., 103; Salomon v. Reis, 3 Circ. Dec., 184; 5 C. C. R., 375; Loudenback v. Collins, 4 Ohio St., 251; Montgomery v. Swindler, 32 Ohio St., 224; Harman v. Kelley, 14 Ohio, 502; Railroad Co. v. Railroad Co., 30 Ohio St., 604; Goodin v. Canal Co., 18 Ohio St., 169; Dodson v. Cincinnati, 34 Ohio St., 276; Railroad Co. v. Dayton, 23 Ohio St., 510; Schaible v. Railway Go., 6 Circ. Dec., 505; 10 C. C. R., 335; Railroad Co. v. Fuller, 22 Am. & Eng. R. R. Ca., 154; Railroad Co. v. Railroad Co., 23 Am. & Eng. R. R. Ca., 56; Railroad Co. v. Railway Co., 28 Am. & Eng. R. R. Ca., 272.

      Messrs. Gilbert & Shipman, for defendant in error,
    cited and commented upon the following authorities:

      Railroad Co. v. Ball, 5 Ohio St., 568; Railway Co. v. Longworth, 30 Ohio St., 108; Railway Co. v. Sharpe, 38 Ohio St., 150; Railway Co. v. Railway Co., 30 Ohio St., 604; Pennsylvania Co. v. Wentz, 37 Ohio St., 333; McNulta v. Ralston, 3 Circ. Dec., 163; 5 C. C. R., 330; Elliott on Railroads, Sec. 1103; Railway Co. v. Milwaukee, 9 Am. & Eng. R. R. Ca., 537; Railway Co. v. Chicago, 7 Am. & Eng. R. R. Ca., 57; Lake View v. Cemetery Co., 70 Ill., 191; Railroad Co. v. Commissioners, 79 Me., 386; Railroad Co. v. Brownell, 24 N. Y., 350; Old Colony & F. R. Ry. Co. v. Plymouth Co., 14 Gray, 155.
   Shauck, J.

In the introductory and general portion of the charge there is a use of inappropriate language upon which counsel for the City base the claim that the jury were directed that in estimating the damages to the portion of the property not taken there could he no deduction on account of benefits which might accrue to it from the extension of the street, but no criticism is or could be made upon that portion of the charge in which particular instruction was given upon that subject. Viewing the entire charge it appears that the trial judge entertained the view, admitted to be correct, that in determining the value of the property taken there could be no deduction on account of benefits to the residue, but that in determining the damages to the residue they should ascertain the damages upon all considerations affecting that question. It does not seem likely that the instructions would mislead the jury in that particular, and attention to the evidence and the verdict shows that they did not.

The question of importance arises out o’f that portion of the charge in which the jury were told that their verdict should include the cost of constructing the bridge or viaduct which would be necessary to carry the trains of the railway company over the proposed street. The substance of the instruction upon that point is as follows: “The jury will determine from the evidence what amount will be necessary to pay, at the ordinary market price, for placing in position, the bridge or viaduct, with the necessary abutments and superstructure to protect against injury to travelers, and to construct of such materials as are required by the present standard of railway construction. This will constitute the third item for which the defendant companies are entitled to compensation in this case.

“The jury after having allowed the necessary amount to pay for the construction of this bridge or viaduct, and such appurtenances to it as will protect persons passing underneath, in the manner as described, will not, however, in addition to that, allow anything for damages or compensation for expenses that the railroad company are or may be put to in the future to maintain such bridge," and keep it in order. That, in the opinion of the court, is a matter for which the railroad company cannot recover in this case, and is not a proper matter for the jury to take into consideration in settling the amount of damages and compensation to be allowed.” This portion of the charge is said to be erroneous because it. is within the legitimate exercise of the police power of the state to require such structure to be erected by a railroad company at its own expense. But here was an obvious exercise of the right of eminent domain, and since the exercise of the. police power is primarily with the general assembly, it is orderly to enquire whether by the terms of existing legislation the duty of constructing the bridge rests, in a case of this character, . upon the railway company or upon the municipality. The duty is not imposed upon the railroad company by the portion of Section 3324, Revised Statutes, which requires of rail-. road companies the construction and maintenance of safe and sufficient crossings. That the provision relates to cases in which the construction of the highway precedes that of the railroad is apparent from the time fixed by the statute for the performance of the duty. It requires the railroad company to construct such crossing “before it operates its road.” No other section of the statute is cited as imposing this obligation upon the company, nor are we aware of any provision to indicate the legislative intention to impose it. Numerous cases are cited, some-from our own reports, showing the exercise of legislative power to protect life and property at grade crossings by regulating the construction of approaches, cattle-guards, etc., and the manner of operating trains. Some of these impose upon railroad companies the incidental expenditure of money, but they have not, on that account, been held to be invalid. But none of them authorizes the conclusion that such an important structural change as is here contemplated may, without compensation, be required of the owner of an existing railroad to accommodate a highway to be subsequently established. The distinction between burdens which are incident to the construction of a railroad and those which are incident to the operation may in some cases be obscure, but the burden in the present case obviously relates to construction. It is equally obvious, in view of the fact that the construction of the railroad preceded that of the street, that the question is to be determined under existing legislation by the application of the doctrines relative to the appropriation of private property. It is admitted that the instructions given to the jury were in accordance with those doctrines as they should be applied in the appropriation of private property belonging to natural persons. That the same doctrines should be applied to the appropriation of property belonging to a railroad company was determined in Railway Co. v. Railway Co., 30 Ohio St., 604. Within those doctrines it is not practicable to distinguish the floor from the other portions of the bridge. Since the legislative department of the state has not attempted to exercise the supposed police power in a case of this; character we have no occasion to consider whether it would be a proper subject of its exercise.

Judgment of the circuit court reversed and that of the common pleas court affirmed.

Burket, C. J., Spear, Davis and Crew, JJ., concur.


text:
    The State of Ohio v. Allen.

      One on trial for crime — Not denied benefit of reasonable doubt, when — Charge to jury — Consideration of evidence.

    One on trial for a crime is not denied the benefit of a reasonable doubt by the instruction to the jury that there should be a verdict of guilty, if a full and candid consideration of the evidence produces a conviction of guilt, and satisfies the mind to a reasonable certainty; but that there should be/an acquittal if the evidence establishes only strong probabilities of guilt.
    (Decided June 16, 1903.)
    Error, to the Circuit Court of Mahoning county.
    In the court of common pleas Allen was tried upon an indictment for robbing one Albert Miller, and a verdict of guilty was followed by an appropriate sentence. Allen filed a petition in error in the circuit court where the judgment of the court of common pleas was reversed for “error by the court of common pleas in its charge to the jury in defining a reasonable doubt.” The charge upon the subject was as follows: “The indictment returned by the grand jury charges the crime of robbery; this indictment will be given you on your retiring, and you are at liberty to read it over, but you will understand, that because the indictment has been returned by the grand jury, it raises no presumption at all of the defendant’s guilt. Neither is the indictment evidence of any fact in the case. This defendant, indicted here as William Allen, giving his name now as George Allen, has plead ‘not guilty,’ and the law says that under this plea of not guilty, he is to be by you, presumed to be innocent, until such time,, as under a consideration of all the evidence submitted in the cas' , you shall be ready to find otherwise, that is, that he is guilty, beyond a reasonable doubt.
    “You are justified and are required to consider a reasonable doubt existing, if the material facts, without which guilt can not be established, may fairly be reconciled with innocence, In human affairs, absolute certainty is not always attainable; from the r. a ture of things, reasonable certainty is all that can be attained on many subjects; when a full and candid consideration of the evidence produces a conviction of guilt, and satisfies the mind to a reasonable certainty, a mere captious or ingenious, artificial doubt is of no avail.
    “You will then, in this case, look to all the evidence, and if that satisfies you of the defendant’s guilt, you must say so. If you are not fully satisfied, but find only that there are strong probabilities of guilt, your only safe course is to acquit. Every material allegation in this indictment is put in issue here, and it is devolved upon the State, by this weight of the evidence, to establish each of the things charged before any other verdict than that of not guilty can be returned. It must appear to you that whatever offense' was committed, that it was committed in this county on or about the date mentioned in the indictment, to-wit, the sixth day of September of this year. It must appear to you that Albert Miller was actually robbed; that is, that somebody unlaAVfully and forcibly made an assault upon him, and either through bodily fear, or by force or violence, took from him certain money of his, then in his possession. You must further find that this was done against the will of Albert Miller, and further find, if you find that this robbery was committed, that it was committed by this defendant now charged.”

      Mr. W. R. Graham, for plaintiff: in error.

      Mr. Frank Jacobs, for defendant in error.
   Shauck, J.

The principal portion of the instruction given will be recognized as taken from the charge which in Clark v. State, 12 Ohio, 483, the reporter imputed to Judge Birchard. The portion of that charge which relates to the probative effect of the evidence required to justify a verdict of guilty against one accused of crime has been given in many cases, and we are not advised that it has been the subject of adverse criticism prior to the present case. If the briefs correctly present the opinion of the circuit court it is itself subject to criticism because it does not clearly distinguish between the elements of a crime and the related facts in a chain of inculpating circumstances. The facts necessary to constitute the crime charged in the indictment were stated with clearness and accuracy and in a connection, and with distributive terms, which naturally conveyed to the jurors the understanding that those facts were severally to be established by the required degree of proof, if the charge correctly defined a reasonable doubt. Both the noun and the adjective in the phrase are words in common use, and they are here used with strict regard to their natural and obvious meaning. So naturally and clearly does the phrase itself suggest its true meaning that the numerous definitions found in charges and in reported cases serve to admonish rather than to illuminate. Since the definitions naturally give prominence to the highly significant adjective and thus warn jurors against evasions of duty by affecting doubts which are unreasonable because not resulting from the absence of inculpating or the presence of exculpating evidence, it is due to the accused that the phrase be defined with substantial accuracy, if defined at all. Whether the definition given in the presentíase is subjected to the test of verbal criticism or to that of the decided cases it appears to be substantially correct. Can a reasonable doubt remain “when a full and candid consideration of all the evidence produces a conviction of guilt and satisfies the mind of a reasonable certainty?” Can one entertain a reasonable doubt respecting a fact of Avhose existence he is “fully satisfied?” Would the punishment of crime be practicable if an accused person may require more in this regard than the instruction that strong probabilities of guilt will not justify a conviction? A flexible language affords opportunity for diversity of diction. In the numerous considerations of this subject the phrase reasonable doubt is variously paraphrased and defined. A number of the leading cases upon the subject are critically analyzed in Anderson’s Dictionary of Law. An examination of those cases and others will show that the charge in the present case gave to the phrase a meaning Avhich comports with that which is generally accepted, as it does Avith its natural meaning.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.