author: Burkrt, J.

text:
    Insurance Company v. Brecheisen.

      Fire Insurance—Cancellation of policy—Return of unearned premiums—Construction of insurance statutes.

    1. Sections 3664, 3665, 3666 and 3667, Revised Statutes of Ohio, are applicable only to cases in which the policy of insurance is canceled upon the written request of the person insured, and have' no application to cases iu which the policy is canceled by the action of the company.
    2. The parties to a contract of insurance are free to fix the terms and conditions upon which a policy may be canceled by the company; but when the insurance is terminated upon the request of the person insured,'the parties must comply with sections 3664 to 3667, Revised Statutes of Ohio.
    3. A contract of insurance provided as follows : “ Seventh—This insurance may be terminated at any time at the request of the assured, upon the payment of any assessments that may be due and unpaid. The insurance may also be terminated at any time at the option of the company, on giving notice to that effect, and when the assured shall have paid the proportion of losses and expenses due the company under the provisions of this policy, at the date of such cancellation, the premium note shall be surrendered.”

      Held: That the policy was cancelled and the insurance terminated by the giving of notice of cancellation by the company to the assured; and that the return of unearned premium was not a condition precedent to such cancellation.
    (Decided October 31, 1893.)
    Error to the Circuit Court of Ashland county.
    The plantiff in error is a fire insurance company, incorporated under the laws of this state, having its principal office at Cincinnati. On the 2d day of June, 1884, said insurance company issued and delivered its policy of insurance of that date to Jacob Brecheisen, then in full life. The part of said policy, which in the business of insurance, is known as the wriite7i part, is in the words and figures following:-

      “ This policy of insurance witnesseth, that Jacob Brecheisen has executed and delivered to The Peoenix Mutual Fire Insurance Company of Cincinnati, Ohio, his premium note for the sum of one hundred dollars, payable as per conditions therein expressed, and the laws of the state of Ohio in that behalf provided. In consideration whereof, the said assured, his heirs, executors, administrators, and assigns, are hereby insured against loss or damage by fire, under the conditions and limitations hereinafter expressed to the amount of one thousand dollars, for the term of five years, commencing at twelve o’clock noon, on the second day of June, one thousand eight hundred and eighty-four, and ending at twelve o’clock noon on the second day of June, one thousand eight hundred and eighty nine, upon the property described as follows: ‘On his two-story frame, metal roof building to be used for mercantile purposes, and situated on the east side of Water street, Eoudonville, Ash-land county, Ohio. Permission to insure up to two-thirds cash value also to complete the building within 45 days. Amount insured, $1,000; rate, 20; premium note, $100; cash, $40; term, 5 years; expiration, June 2,1889.’ ”
    The seventh condition in said policy is as follows :
    “ Seventh—This insurance may be terminated at any time at the request of the assured upon the payment of any assessment that may be due and unpaid. The insurance may also be determined at any time at the option of. the company, on giving notice to that effect, and when the assured shall have paid the proportion of losses and expenses due the-company under the provisions of this policy, at the date of such cancellation the premium note shall be surrendered.” On the 4th day of July, 1885, the building was totally destroyed by fire, and the assured having made proofs of loss, and the company failing to pay, an action was commenced by the assured against the company, in the court of common pleas, for the recovery of the amount of the policy. A copy of the policy is set out in the petition. The amended answer of the company admits the issuing and delivery of the policy, the receipt by the company from the assured of a premium note for one hundred dollars and forty dollars in cash, which it avers was an advance assessment of forty per cent, on said premium note, and was received in lieu of other assessments to cover losses and expenses of said company during the term of said policy. The answer further avers that the company, as provided for in the seventh condition of said policy, did, on the 27th day of June, 1885, notify the assured in writing that his policy had been canceled by action of the board of directors of the company, which notice, together with the sum of twenty-six dollars and said premium note, were received by the assured from the company by due course of registered mail on June 30, 1885. The company avers that the $26.00 was all there was left of the $40.00 after paying the expenses and losses properly chargeable to account of assured as a member of the company for the time his policy was in force, and that the fire occurred after said policy had become canceled by reason of the notice so received by assured on June 30, 1885. To this amended answer there was filed a demurrer, which was overruled.
    A reply was then filed which contains this admission : “Plaintiff admits, as alleged in said amended answer, the receipt of cancellation of policy 7060, as in answer alleged, by registered mail on June 30, 1885.”
    The other allegations of the amended answer, in so far as they are not admitted in the petition, are denied in the reply.
    A jury was waived, and the cause was submitted to the court, and the court “ after hearing the evidence, examining the agreed facts and exhibits and arguments of counsel,” found for the plaintiff below, and for the full amount of his policy and interest.
    A motion was made by defendant below for a new trial, which was overruled and exceptions taken, and judgment was rendered for plaintiff below.
    A petition in error was filed by the company in the circuit court to reverse the judgment of the common pleas, and during the pendency of the case in. the circuit court, the defendant in error died, and his administrator was made a party defendant in his place. The circuit court affirmed the judgment of the common pleas with costs; and thereupon a petition in error was filed by the company in this -court to reverse the judgments of the courts below.

      Harrison, Olds & Henderson and H A. Mykrantz, for plaintiff in error.
    The provisions which the parties themselves made in their contract, by which the insurance might be terminated -and the policy canceled before the expiration of the term specified in the policy, are contained in the seventh paragraph of the policy.
    Giving to the language of this part of the policy, or contract of the parties, its ordinary and plain meaning, the defendant company had, so far as the policy or contract could give or confer it, the right and power, in the exercise of its option so to do, to terminate the insurance stipulated for in the policy, “on giving notice to that effect.” The defendant company fulfilled this condition precedent prior to the loss, and the facts admitted by the pleadings, show this.
    The defendant alleged the giving of such notice, and the plaintiff, in his reply, admitted the receipt of the notice of cancellation of the policy, as it is alleged in the amended answer. There is a radical difference between the stipulations of the policy in the case at bar and those involved in the cases cited by opposing counsel. The question presented in the case at bar has been settled. The Newark Fire Ins. Co. v. Sammons, 11 Brad., 230; 110 Ill., 166; Grace v. Am. Cent. Ins. Co., 16 Blach., 433; Mellville Ins. Co., v. Collered, 9 Vroom, 486; Wood v. Firemen's Ins. Co., 126 Mass., 319; Hartford, Ins. Co. v. Reynolds, 36 Mich., 506; Richards on Insurance, section 157; May on Insurance (3d Ed), section 67.

      McCray & Winbigler, for defendant in error.
    The insurance company, as said by plaintiff in error, “undoubtedly had the right to make this provision.” More than that, the law requires some such provision to be inserted in the policy. Section 3664, Revised Statutes of Ohio.
    It is claimed by plaintiff in error that the return of the unearned premium is merely an incident, not affecting the-main object, to-wit, the cancellation and termination of the-insurance; and that the return of the unearned premium is. not a prerequisite to the termination of the insurance, and that, upon the receipt of notice of cancellation, the policy became void, and the relation of the parties became that of' debtor and creditor.
    This claim might be tenable on one ground only; that is, if' the condition in policy for cancellation, was: “ Either party may cancel this policy on giving notice to that effect.” And in support of this claim, see vol. 11, Bradwell, page 230, appellate court reports of Illinois. But we have no such case here.
    The company must pay or tender the full amount (when they cancel), of unearned premium. Hawthorn v. Germania Ins. Co , 55 Bar., N. Y., 28; Hollingsworth v. Germania Ins. Co., 45 Ga., 294; Albany City Ins. Co. v. Kating, 46 Ill., 395; Stone v. Franklin Ins. Co., 105 N. Y., 543.
   Burkrt, J.

The agreed statement of facts was not carried into the journal entry, as was done in McGonnigle v. Arthur, 27 Ohio St., 251, and therefore could not become part of the record without a bill of exceptions. Bank v. Bank, 16 Ohio, 170; Young v. State, 23 Ohio St., 577.

The agreed statement of facts not being part of the record, the case stands upon the averments and admissions in the pleadings.

The pleadings admit that the copy of the policy, as set out in the petition, is a correct copy of the policy issued by the company to the assured; and the reply admits the receipt of the cancellation of the policy, by registered mail, on June 30, 1885, as alleged in the amended answer of the company.

The petition avers, and the answer concedes, that the fire occured on the 4th day of July, 1885.

■ The testimony can not be presumed to vary or contradict these admissions so made in the pleadings. Oliver v. Moore, 23 Ohio St., 473; Gittings v. Baker, 2 Ohio St., 25, 26. With these admissions, what are the rights of the parties? On part of the company it is contended that the notice so received by the assured on June 30, 1885, .had the effect to at once cancel and annul the policy, and that the policy was not in force at the datfe of the fire on July 4, 1885.

The assured claims, on his part, that the policy would remain in full force until the company should give him notice of its cancellation, and in addition to such notice pay back, or tender to him, so much of the $40.00 as had not been earned as premium in the thirteen months during which the policy had been in force, and that in fixing the amount of unearned premium to be returned, the company would not be entitled to the customary short rates, but would be compelled to pro rate according to the whole five years’ life of the policy; and that $31.33 was required to be paid back on June 30, 1885, in order to cancel the policy.

A careful reading of sections 3664, 3665, 3666 and 3667, ■of Revised Statutes, will show that these sections apply only to cancellations of policies “ upon the written request of the person insured,” and furnish no rule or guide for determining the rights of the parties when the cancellation of the policy is upon the request, or motion of the company. The legislature has seen fit to leave the rights of the parties, when the cancellation is upon request of the company, as .such rights may be fixed by the contract in the policy. The parties to the policy are free to contract as they please, with reference to a cancellation of the policy upon request bf the company, but when the cancellation is upon the request of the person insiired, the contract must be according to the provisions of the above cited sections of the statute.

■ The policy her.e in question is on the mutual plan, and a premium note was given and forty dollars paid in cash at the issuing of the policy. The result would be the same if the policy was on the cash plan, because the parties have not contracted for a return of the unearned premium, as a condition precedent to the cancellation of the policy.

After providing how the policy may be canceled upon request of the assured, the policy provides as follows:

“ This insurance may also be terminated at any time at the option of the company, on giving notice to that effect, and when the assured shall have paid the proportion of losses and expenses due the company under the provisions of his policy, at the date of such cancellation the premium note shall be surrendered.”

Under the above provisions of the policy, it is clear that the giving of the notice terminates the insurance. When the losses and expenses due the company at the date of cancellation shall be paid the premium note shall be returned. All that the company is required to do by this contract, in order to cancel the policy, is to give notice to that effect. What follows is not a condition precedent to the termination of the insurance, but only an obligation to return the premium note upon payment of the proper proportion of the losses and expenses. No contract is found in this policy for the return of the unearned premium as a condition precedent to the termination of the insurance, and the rights of the parties must be determined by the contract which, they have made, and not by a contract to be made for them by the court. The question in such case is not what contract the parties should have made, nor what would be equitable, but what contract did they in fact make? Each party must stand or fall upon the written contract found in the policy.

True, there is a class of cases which hold that both notice and the return of the unearned premium, are required to cancel the policy and terminate the insurance, but in all these cases the contract contained in the policy so provided.

The contract in this policy does not so provide, and therein lies the distinction. The following authorities support the view taken by the court, and show the distinction just mentioned:

The Newark Fire Ins. Co. v. Sammons, 11 Bradwell, 230; Grace v. Am. Cent. Ins. Co., 16 Blatch., 433; Mellville Ins. Co. v. Collerd, 9 Vroorn, 486; Wood v. Firemen's Ins. Co. 126 Mass., 316; Hartford Ins. Co. v. Reynolds, 36 Mich , 506; Hathorn v. Germania Ins. Co., 55 Barbour, 28; Hol lingsworth v. Germania Ins. Co., 45 Ga., 294; May on Insurance, (3rd Ed.), sec. 67, J. Richards on Insurance, sec. 157.

It is therefore clear from the admissions in the pleadings, that the policy was canceled and the insurance terminated before the fire, and that the judgment in favor of the plaintiff below, and the affirmance thereof by the circuit court, aré both erroneous, and should be reversed, and the case remanded to the court of common pleas for a new trial.

Judgment reversed.


source: Caselaw Access Project

author: Wikkiams, J.

license: Public Domain

text:
    Machine Company v. Insurance Company.

      Fire insurance— When valid contract of., may be made by parol— Special rates and conditions—Delivery of policy—When comr píete, though remaining in hands of agent—Agent— When may waivepayment in cash, of premiums.

    1. A valid contract of insurance may be made by parol, when not forbidden by statute, or a provision of the company’s charter which has been brought to the knowledge of the other contracting party; and, as in other cases of parol contracts, the assent of the parties to the terms of the agreement may be shown by their acts and the attending circumstances, as well as by the words they have employed.
    2. When nothing is said in the negotiations about special rates of insurance, or special conditions of the policy, it will be presumed that those which were usual and customary were intended.
    3. In determining whether there has been a delivery of a policy, effect will be given to the intention of the parties; and when the terms of an executed policy have been unconditionally accepted by the insured, and it has thereafter been treated as in force by the parties, its delivery will be regarded as complete, though it remain in the hands of the insurer’s agent.
    4. An agent authorized to make contracts of fire insurance and issue policies, may waive payment in cash of the premiums, and give time for their payment, unless there are restrictions upon his authority of which the insured has notice; and such waiver may be express or implied.

      5. Where, under an arrangement with the insured by which his in, surance was to be kept up to a specified amount by renewals or new policies, it was the custom of the agent to charge the premiums as policies were issued, or renewed, and have periodical settlements with the insured, when the premiums would be paid, a credit for a premium so charged to the next period of settlement, may be implied.
    (Decided October 31,1893.)
    Error to the Circuit Court of Licking county.
    The action below was brought by The Newark Machine Company, against The Kenton Insurance Company of Kentucky, to recover the amount of a policy of fire insurance.
    The issue tried was whether the contract of insurance had been consummated by the parties.
    The plaintiff prevailed in the court of common pleas; but the judgment there obtained was reversed by the circuit court, and error is prosecuted here to the judgment of that court.
    A further statement of the facts that are pertinent to the questions involved, is contained in the opinion.

      Kibler & Kibler, for plaintiff in error.
    We submit, that in view of the facts, and in view of the law as settled in the case of Germania Company v. Shoemaker 22 W. L. B., 315, and other cases, the court below erred. Dibble v. Northern Assurance Company (Mich.), 37 N. W. R., 704.
    It is well settled that prepayment of the premium can be waived. Krumm v. Insurance Company, 40 Ohio St., 225; Dayton Insurance Company v. Kelley, 24 Ohio St., 345, 368; Little v. Insurance Company, 38 Ohio St., 110; Am. & Eng. Ency. of Law, 308 and 309; Von Wein v. Scottish, etc., Ins. Co., N. Y. Court of Appeals, 28 N. E., 123.
    It was a question for the jury whether there was a delivery of the policy. The Insurance Company denied that it was delivered. The law on this subject is well settled. 11 Am. & Eng. Ency. of Law, 285, and cases cited; Insurance

      Co. v. Williamson, 11 Wall, 222; Hardwicke v. State Insurance Company (Oregon), 26 Pacific Reporter.

      R. D. Marshall, for defendant in error.
    Counsel for plaintiff in error in their brief state that a pre-payment of premium can be waived. No one questions that, but in this case there is no question of waiver. No premium was paid or agreed to be paid, and therefore there was nothing to be waived as to payment.
    It is a well settled principle of elementary law, appertaining to insurance, that unless the parties have come to an agreement as to all the terms of the contract, so that so far as the terms are concerned, nothing remains open, and nothing remains to be done but to execute what has been agreed upon, the contract is still incomplete and of no binding force to either party. An offer by one party imposes no obligation upon another, until accepted by him, according to the terms in which the offer is made. May on Insurance, section 50.
    If there has been no payment of the premium and no delivery of the policy, the contract is prime facia incomplete, and he who claims under it must show that it was the intention of the parties that it should be operative, notwithstanding these facts. May on Insurance, section 56.
    To constitute a valid contract of insurance, the minds of the parties must meet as to the premises and the risk; as to the amount insured; as to the time risk shall continue; and as to the premium. Baptist Church v. Brooklyn Fire Ins. Co., 58 N. Y., 153.
    That there was no cancellation of the policy of the Norwich Union, of which there were two, I think need hardly be asserted; for it, in fact, is not contradicted, and that it is clear, I cite May on Insurance, sections, 67, 69.
   Wikkiams, J.

The facts of the case, as shown by the record, and about which there is no controversy, are substantially as follows: On the 30th day of June, 1884, the plantiff, a corporation, owned and was operating a large manufacturing plant in the city of Newark, and had been the owner and operator of it for several years. The defendant, a fire insurance company, then had an established agency in Newark, in the charge of H. D. Murphy, who was also the agent of a number of other fire companies, among them The Norwich Union Company. He was a regularly commissioned agent of these companies, and was provided by them with blank applications, and policies duly signed by the proper officers, to be filled up and countersigned by him as agent, and delivered in the course of the business of his agency, and also with registers in which to keep a record of the business, and blanks for making reports of the same to the respective companies. He had, during the existence of his agency, issued a large number of policies of different companies represented by him, to the plaintiff, insuring its buildings, machinery, and stock, against loss or damage by fire, one of which was a policy on the stock for five thousand dollars in the Norwich Union, issued a short time prior to June 30, 1884. There was an understanding between the managing officer of the plaintiff and Murphy, that the latter should keep the insurance of the plaintiff up to a certain amount, either by renewals, or new polices in good companies represented by him, and his course of dealing with the plaintiff under that understanding was to charge up the amount of the premiums to the plaintiff when policies were issued, or renewed, and have periodical settlements, usually once a month, when the premiums would be paid. The Norwich Union not desiring to carry so large an insurance on the plaintiff’s stock, a few days prior to the 30th of June, 1884, directed Murphy to reduce its risk to twenty-five hundred dollars. He, thereupon, on the 30th day of June, 1884, filled up for that amount, one of the blank policies which that company had furnished him, duly signed by its proper officers, and countersigned it as agent, and at the same time filled up, for the same amount, one of the blank forms of policy with which the defendant company had supplied him, duly signed by its officers, and countersigned the same as its • agent, ready for delivery. He made the customary entries of the issuing of the policies, in the registers of the respective companies, and in that of the Norwich Union an entry also of the cancellation of the five thousand dollar policy, in place of which, the two policies he had so filled up, were intended to be substituted. On the 2nd day of July, 1884, he forwarded to the defendant, at its home office, in Covington, Kentucky, what is called a daily report, in which he gave the number of the policy he had written for the plaintiff, its date, amount, and duration, the rate and amount of the premium, a description of the property insured, and other particulars of the risk. This report was received at the home office July 3, 1884. The premium on the five thousand dollar policy had been fully paid by the plaintiff, and when the entry of its cancellation was made the policy had run but a short time. The unearned or return premium was carried to the credit of the plaintiff on the books of the agent, and the amount of the premiums due on the two new policies was charged to the plaintiff, by the agent, in accordance with his previous custom. At the next regular settlement between the plaintiff and the agent, which was made July 7, 1884, there was due him from the plaintiff, on account of premiums on various policies, the sum of $438.55, which amount included the balance due on the policy of the defendant. The amount due on the account was then paid by the plaintiff. When the policy of the defendant was written, and the cancellation entered of the Norwich Union policy, the latter was in the possession of F. S. Wright, cashier of the First National Bank of Newark, as collateral. Wright was also vice president of the plaintiff, and looked after its insurance. On the 30th day of June, 1884, after writing- and executing the two new policies, and entering the cancellation of the one for which they were intended to be substituted, the agent called at the bank to see Mr. Wright, take up the policy so held by him, and deliver the new ones in its place. Wright was absent, and the agent failed to see him. He called, several times within the next day or two with like results, and did not see Wright until the evening of July 3, 1884, after the bank had closed. The agent then informed Wright that, at the request of The Norwich Union Company he had canceled its policy for five thousand dollars which Wright then held, and issued to the plaintiff in its place, two other policies for twenty-five hundred dollars each, which he proposed to deliver, and take up the canceled policy. Wright replied, that was all right, all he wanted was to have it so that the amount was the same, and he (the agent) could call at the bank any time when it was open, and make the exchange, and if he (Wright) was not in, the person in charge would make the exchange for him. There appears to have been no reason why the exchange was not made at the time of the interview on the evening of July 3, except that the bank was then closed. No claim was thereafter made by the plaintiff to the canceled policy; nor was there any question at the trial, of Wright’s authority to act for the plaintiff, or of that of the agent, Murphy, to act for the defendant. The property was totally destroyed by fire on the 5th day of July, 1884. At that time the new policies had not been actually delivered, or the old one taken up. Immediately after the fire, the defendant was notified of it by telegram from the agent, who received from the defendant the following response: “Yours received. Have telegraphed. you for list of companies on stock with us. The list sent to Cincinnati made no mention of Kenton, and we were willing to be ignored. George C. Coker, Secretary.” It was admitted on the trial, that proof of the loss was duly made and filed with the defendant, that Wright then had no interest in the claim, and, if the plaintiff was entitled to recover, the amount of the recovery should be twenty-five hundred dollars with interest from September 30, 1884.

It does not appear that the names of the companies in which the new policies had been written, were mentioned in the interview between Wright and the defendant’s agent, nor the rate or amount of the premium, nor the duration or conditions of the policies; and it is claimed by the defendant, that there was, therefore, no mutual assent of the parties to either of those terms, and so, no completed contract of insurance between them. It is undoubtedly true that those are essential elements of a contract of insurance, and if there was not a meeting of the minds of the parties upon them, the contract was not consummated, and no risk attached. But it is equally true that the agreement need not be expressed in words; it may be implied from the circumstances, and conduct of the parties.

If the case of Cockerill v. Insurance Company, 16 Ohio, 148, in which it was held that a policy of insurance, to be valid, must be in writing, was not virtually overruled by the case of Insurance Company v. Kelly, 24 Ohio St., 345, as it was said to have been by Okey J., in the case of Insurance Co. v. Wall, 31 Ohio St., 633, it has been so qualified by these subsequent cases as to limit the rule it announced to policies in their strict technical sense, and leave unaffected by it, parol contracts of insurance.

It is now well settled, that a policy is only evidence of the contract, and the latter may be shown by parol, when the policy has not been written, or is withheld, unless such contract is forbidden by statute, or a provision of the company’s charter which is brought to the notice of the other contracting party. Ostander on Insurance, sections 13, 14; Richards on Insurance, section 140; Insurance Company v. Shaw, 94 U. S., 574; Insurance Company v. Kelly, supra; Palm v. Insurance Company, 20 Ohio, 529, 537. And, as in other cases of parol contracts, the terms of the agreement, and the assent of the parties to them, may be shown by their acts, and the attending circumstances, as well as the words they have, employed. There was, in this case, no express agreement in regard to the property to be insured by the new policies. The property was not mentioned in the interview between the defendant’s agent and Wright. But, as it was agreed the new policies were to be exchanged for the canceled policy, it must have been as clearly understood as if it had been expressly stated, that they were to cover the property included in the canceled policjr. So, in regard to the rate and amount of the premium, and form and conditions of the policy. It is not claimed that the conditions of the defendant’s policies, or its rate of insuranee, are different from those of like companies; and, it is generally known that the form and conditions of fire policies in use by good companies do not differ substantially, and the rates of insurance are established, and uniform on the same classes of property. And where nothing is said, in the negotiation for insurance, about special rates or conditions, it may be presumed that those which were usual and customary, were intended. In Richards on Insurance, section 42 (second edition), it is laid down, as a general rule, that “whether the contract of insurance is closed by parol or by a preliminary binding receipt, the legal presumption is that the usual policy is to follow.” And in the preceding section, the same author says", that it is not necessary that all the particulars of a contract should be made the subject of express stipulation, “for it may well be understood in the absence of express declaration to the contrary that the usual form of policy is acceptable to both parties.” It was held by the Supreme Court of Minnesota, in Salisbury v. Insurance Company, 32 Minn., 460, that, “Upon an oral contract of insurance, where nothing is said about conditions, if a policy is to be issued, the parties are presumed to intend that it shall contain the conditions usually inserted in policies of insurance in like cases.” And in Eames v. Insurance Company, 94 U. S., 629, Mr. Justice Bradley, says: “It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount, and the rate of insurance is ascertained or understood, and the premium paid if demanded. It will be presumed that they contemplate such form of policj', containing such conditions and limitations as are usual in such cases, or have been used before between the parties. This is the sense and reason of the thing, and any contraiy requirement should be expressly notified to the party to be affected by it.”

Upon the facts of the present case, there can be but little doubt that the contract of insurance made by the defendant through its agent, with the plaintiff, was complete in all its terms. The plaintiff had previously arranged with the agent to keep its insurance up to a certain amount, in good companies for which he was authorized to act. This arrangement virtually left the selection of the companies to the discretion of the agent; and, acting under it, he had written the policy of the defendant and the new policy of The Norwich Union Company, each for twenty-five hundred •dollars, and duly countersigned both ready for delivery to the plaintiff, and entered the cancellation of the policy which Wright had in his possession, before the interview of July 3. The policy of the defendant was then complete, containing a description of the property, the amount, commencement, and duration of the risk, the rate and amount of the premium, and all terms and conditions usual in such policies. This policy, and the new policy of the Norwich Union, the agent proposed to Wright to exchange for the canceled policy, without condition or qualification. The proposition was immediately assented to, and accepted, without any qualification or condition whatever. The terms of the contract of insurance thus proposed by the defendant, through its agent, were definite and certain in every particular; they were those set forth in the policy. The acceptance was as broad as the proposition, and was therefore an acceptance of all the terms and conditions of the policy as it was written. That the plaintiff chose to accept the proposition, unqualifiedly, without further inquiry or examination, affords the defendant no ground for claiming the contract was, on that account, incomplete. The only reason the exchange was not then made was, that the canceled policy was locked up in the bank. The parties evidently regarded the exchange as complete; and thereafter the agent was a mere custodian of the policy in question, for the plaintiff, and the actual handing of it over was not essential to the risk. Effect will be given to the intention of the parties; and what their conduct shows they considered a delivery, must control, in determining whether it was made. Biddle on Insurance, section 149; Dibble v. Northern Assurance Company, 70 Mich., 1; Bodine v. Insurance Company, 51 N. Y., 117; 11 Am. & Eng. Ency, of Raw, p. 285. It is quite evident the agent .considered the policy of the defendant in full force. He reported it as such to the company; and that the latter so treated it, even after the fire, is shown by its telegram to the agent, inquiring what companies were “ on stock with us.” The policy was on the stock of the plaintiff in its manufactory. The manual surrender by Wright, of the policy in his possession, was not, we think, necessary to effect its cancellation. His assent to the cancellation made by the agent was sufficient. It then ceased to be of any force, and was so treated by the parties.

The only other ground upon which it is claimed the defendant is not liable is, that the premium was not paid until after the loss occurred. Murphy was the duly commissioned agent of the defendant, authorized to make contracts of insurance, collect premiums, and issue and renew policies; and, to that end, was furnished by the defendant with printed forms of policies, signed in blank by the president and secretary of the company, to enable him, without conference with them, to countersign and issue the policies- in behalf of the company. It is well settled that such an agent is the general agent of the company, and may, in his dealings with those he insures, waive payment in cash, of the premiums, and, indeed, any of the conditions of the policy, except when a restriction upon his authority is in some way brought to the knowledge of the insured. In a recent and valuable work on insurance, it is said, that a fire policy “does not ordinarily make the payment of the premium a condition precedent to the validity of the contract, and a general agent may of course extend credit to the insured, or not, as he chooses. The general custom where credit is given, is for the agent to do so on his own responsibility. But in case the agent should make default in accounting to the company the policy will nevertheless, be valid. And though the policy provide that it shall not take effect until the premium is paid in cash, the general agent'has power to waive the premium, and w’ill be held to have waived it if he delivers the policy without enforcing-payment.” Richards on Insurance, section 95 (second ed.). And in section 98, of the same work, that author says: “ An agent of a life company who is intrusted with the business of closing the contract by delivering the policy is held 'to have an implied authority to determine how the premium then due shall be paid, whether by cash, or, as is sometimes done, by giving credit, in which case the agent becomes the creditor of the insured, and the debtor of insurer. In that event, though the agent subsequently defaulted atid the money never reached the company, the policy would ■still be binding, By the weight of authority the agent is 'held to have this discretionary power, although the policy in terms denies it; but this is based upon his possession of the document for purposes of delivery, and his instructions to deliver it, and consequently his power does not extent to ■subsequent premiums or premium notes.” Bodine v. Insurance Co., 51 N. Y., 117. The authorities on this subject •are extensively collected in that very convenient, and .almost indispensable work, The American and English Enclyclopsedia of Raw, vol. 11, page 333. The waiver of the payment of the premium in cash, is an act within the ■exercise of the agent’s general authority to issue policies ■and collect the premiums, and such waiver may be either •express or implied. And when, as in the case before us, it has been the custom of the agent, under an arrangement with the insured by which the latter’s insurance should be kept up to a certain amount by renewals or new policies, to charge the insured with the premiums, as policies were issued or renewed, and have periodical ■ settlements, when the premiums would be paid, a credit for a premium so •charged, to the next period of settlement may be fairly implied.

We see no reason, upon the facts of this case, why the. ■plaintiff should not recover, as it did in the court of common pleas.

The fidgment of the circuit court is therefore reversed, and .that of the common pleas affirmed.


author: Minshai/r, J.

text:
    Brewing Co. v. Bauer.

      Evidence—Collateral facts—When admissible—Instructions to the jury in relation thereto.

    1. Any fact is admissible in evidence, though collateral to the main issues, which tends to prove or disprove the matter or fact in dispute.
    2. In an action by an employe against his employer for damages. resulting from an injury received in operating a machine, caused by its defective construction, the defect being charged to the negligence of the employer, it is competent to prove that, on a former occasion, while it was being operated by another, the machine worked in a manner similar to when the plaintiff was injured. But such evidence is only competent to prove the defective character of the machine and the employer’s knowledge of the fact; it is not competent to prove actionable negligence on the part of the employer at the time the plaintiff was injured ; and the jury should be so instructed at the time it is received..
    (Decided October 31, 1893.)
    Error to the Circuit Court of Eucas couuty.
    The facts are stated in the opinion.

      Waite & Snider, for plaintiff in error.
    Did this' evidence of other injuries and accidents correspond with the allegations, and was it confined to the point in issue ? The main question for the jury to determine was whether this elevator, at the time it was being operated by the plaintiff, was unsafe, defective ,and insecure; and did the defendant know this at the time Bauer was directed to or did work upon it. As stated, there was no evidence offered or claim made at the trial that the apparatus was in any specified particular defective or insecure—only that it was in a general way dangerous. Greenleaf on Evidence, sections 51, 52 and 53.
    Shift and turn the true issue before the jury, as we may, we are confronted always with the discovery that this objectionable testimony wholly failed to prove any defect or dangerous element in this elevator, unless it should be further shown that each injured person conducted himself properly, and the belt had not become too loose for safety, which would not be sanctioned by a single reported decision.
    There are reported decisions applying this rule in Green-leaf to a great variety of phases which issues have assumed,, and in all of them its existence and justness have been recognized; and they have admitted or rejected the evidence under consideration as it was found to come within the spirit of the rule—to relate to what was found to be the issue, or to be a collateral fact. A classification of such decisions would be a laborious task, and here unecessary; but a reference to and special consideration of the manner of applying the rule in a few of them will illustrate and be authority for the point we are urging. Collins v. Inh. of Dorchester, 6 Cush., 396; Aldrich v. Inh. of Pelham, 1 Gray, 510; Sherman v. Kortright, 52 Barb. (N. Y.), 267; Hubbard v. Concord, 35 N. H., 52; Moore v. City of Richmond, 85 Va., 538; Temperance Hall Asso. v. Giles, 33 N. J., 260; Coats v. Canaan, 51 Vt., 131; Dye v. D.L. & W. R. Co., 130 N. Y., 671; Parker v. Portland Pub. Co., 69 Me., 173; Edwards v. Ottawa Riv. Nav. Co., 39 Up. Can. Q. B., 264; Crocker v. McGregor, 75 Me., 282; Darling v. Westmoreland, 52 N. H., 401; Gordon v. Railroad, 58 N. H., 396; Insurance Co. v. Tobin, 32 Ohio St., 77; Village of Ashtabula v. Bartram, 3 C. C. R., 640; Brooklyn St. R. R. Co. v. Kelly, 6 C. C. R., 155.

      James E. Pilliod, and Ashto7i H. Coldham, for defendant in error.
    We respectfully submit that it was not error for the trial court to allow the plaintiff to introduce testimony to show that prior accidents had happened to others at the elevator or lift, who were doing the same work as the plaintiff, at the time he was injured, after the elevator had been shown to be in the same condition, as when the accident to the plaintiff occurred; not for the purpose of proving negligence on the part of the defendant nor care on the part of the plaintiff, but simply to show the dangerous character of the contrivance, and knowledge on the part of the defendant. McCarragher v. Rogers, 120 N. Y., 532; Osborne v. City of Detroit, Am. and Eng. Corp. Cas. vol. 18, 231; District of Columbia v. Annes, 107 U. S., 524; City of Aurora v. Brown, 12 Ill. App., 122; Morse Admore v. Minneapolis & St. Louis Ry. Co., 30 Minn., 465; Ashtabula v. Bartram, Ohio C. C. R., vol. 3, p. 640; Todd v. Rowley, 8 Allen (Mass.), 57; Bailey v. Trumbull, 31 Conn., 581; Walker v. Westfield, 39 Vt., 256; Sherman v. Kartright, 52 Barb. (N. Y.), 69; Cook v. Med Durham, 20 Am. and Eng. Corp. Cas., 384; Delphi v. Lowrery, 74 Ind., 520; Augusta v. Hafers, 61 Ga., 48; Darling v. Westmoreland, 52 N. H., 401.
   Minshai/r, J.

The action below was by an employe of the defendant to recover damages for a personal injury caused, as claimed, by the negligence of the defendant in furnishing an unsafe appliance with which to do the work in which he was employed. The averments are, in substance, that while operating, by the direction of the superintendent of the company, a lift, used for the purpose of elevating barrels and similar packages from a lower to an npper floor, he was injured, without fault on his part, by one of these packages falling back upon him; and that it resulted from the negligent and defective construction of the appliance, of which the defendant had notice, but of which he had no knowledge, and could not have had, in the exercise of ordinary care on his part. Issues were joined upon the averments of the petition as to the defective character of the lift, the negligence of the defendant, and the averments that it happened without fault on the part of the plaintiff. It appeared that the lift or elevator consisted of a broad, heavy, rubber belt, with certain lateral supports and guides of timber, running nearly perpendicular against a board the full width of the belt, and over a pulley just above the upper floor, and around another just below the wash room floor. To the face of this band were attached two sets of iron hooks, or arms, which, as the band revolved, caught the barrels on the under side and carried them up through an opening in the floor; and as they turned on the upper pulley the barrels fell away by their own weight to the floor above and left the hooks free to contiuue their downward movement. The barrels to be elevated were placed upon a skid raised above the lower floor and inclined towards this revolving band, and the man tending the elevator, rolled them, one at a time, against the band, ready for the hooks coming around and upward from the lower pulley to carry them over the pully above; and as one barrel was freeing itself from the hooks above, the other set of hooks were about ready to receive the next barrel. While the plaintiff was engaged in so placing the barrels ready to be taken up by the hooks, one of them, a half-barrel, after being carried part way up, fell from the hooks, and striking his hand,- then resting on the barrel next to go up, caused the injury complained of.

It was claimed that these hooks or arms were too short, and that in any irregular motion of the' belt, the barrel or package being lifted, would drop out and fall back; and that this was not an infrequent occurrence, when, as sometimes happened, the belt became too loose.

During the progress of the trial a witness was called by the plaintiff, and stated, in answer to a, question, that sometime before, he had been employed by the defendant to do' the same work, and that while so employed, a barrel fell back and injured him. The counsel for the plaintiff stated that this was offered for the sole purpose of showing the dangerous character of the machine, and the defendant’s knowledge of that fact, and for no other purpose. The court then stated that it would be received for these purposes, and no other; and so instructed the jury at the time. Similar evidence as to the falling back of barrels while the lift was being operated, was given by other witnesses, to which the defendant excepted at the time.

The jury rendered a verdict in favor of the plaintiff, on which the court, after overruling a motion for a new trial, rendered judgment. The judgment having been affirmed by the circuit court, this proceeding is prosecuted to obtain a reversal of both judgments so rendered.

The only question in the case is, as to the admissibility of the evidence offered to show that on former occasions, when the elevator was being operated, barrels and packages fell back and injured the person operating it, as in this case.

It is claimed to be incompetent on the ground that it raises collateral issues, tending to mislead the jury and to surprise the opposite party, by the introduction of evidence for which he could not have been prepared by the nature of the issue. The rule relied on is thus stated by Greenleaf: “ The evidence offered must correspond with the allegations, and be confined to the point in issue.” Greenleaf on Evidence, §51. And he adds, in the following section, “This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal matter or fact in dispute.”

The authorities on the question are conflicting. The courts of Massachusetts and some of the other states, hold that such evidence is not within the issue, but collateral to it, and should be rejected. Collins v. Dorchester, 6 Cush., 396; Aldrich v. Pelham, 1 Gray, 510; Phillips v. Town of Willow, 70 Wis., 6. But reason and the weight of authority are the other way. The rule, as stated by Greenleaf, excludes only those facts, “which are incapable of affording any reasonable presumption or inference as to the principal matter or fact in dispute.” So that a fact cannot be said to be collateral to the issue, if, when established, it tends to prove or disprove the principal fact in dispute. In this case a number of principal facts were in dispute; among these were, the defectiveness of the machine, and the defendant’s knowledge of that fact, as well as his negligence in the premises. If the evidence objected to, tended to prove either of these facts, there was no error in its admission. There is no rule of evidence which requires that what is offered should be relevant to every issue in the case; it may be relevant to one, and irrelevant to another. No party can, as a rule, prove his case uno flatu. He is compelled, in the nature of things, to proceed step by step. And it not infrequently happens, that what is competent for one purpose is not for another. The mixed character of the evidence does not, however, render it wholly incompetent. The evidence in such case is admitted with a direction from the court to the jury as to how it is to be applied—on what issues it is to be considered, and on what, not; as was done in this case.

On reason it seems plain that evidence as to how this lift or elevator behaved on former occasions—that, at other times when being operated by other persons, barrels being lifted, had fallen and injured those operating it, or had simply fallen back, the conditions remaining substantially the same, tended to prove some vice in its construction that rendered its operation dangerous, and that the company knew or should have known the fact. Inspection itself may indicate some defect in a machine, affecting its safety or usefulness; but as is most usually the case, its defective character, whatever it may be, is more clearly observed in its operation. Experiment is the final and most conclusive test of its safety as well as of its usefulness; and the fact, that the carefulness of the party operating the machine may be involved in each instance, may affect the weight of the evidence, but not its admissibility, as such a limitation would exclude the result of every experiment offered in evidence; which would amount to a reductio absurdum. The defectiveness of the lift and the company’s knowledge of it, would not, however, alone constitute actionable negligence. The character of the machine and the employer’s knowledge, being established, it still remains a question of fact, whether under all the circumstances, a case of actionable negligence has been made out. That which caused the danger may have been irremediable, and it is no violation of duty by an employer to put one in his employ at the operation of a dangerous machine, if the employe is fully informed as to its character, and voluntarily accepts the employment. Wherever force is applied to machinery there is more or less danger to those operating it; so that the duty of the employer toward his employe is not to furnish a perfectly safe machine, but one as safe as can be provided in the exercise of ordinary care and prudence. Whether the employer is negligent in this regard does not depend solely upon the fact that the machine is known by him to be a dangerous appliance, but whether, with such knowledge, he neglected to do what a person of ordinal care could and would have done under such circumstances. It was, however, incumbent on the plaintiff, in making out his case, to show the dangerous character of the machine and the company’s knowledge, as well as its negligence; and, while the evidence was not competent to prove negligence, it did tend, as we have shown, to prove the other facts, and was, therefore, admissible. As said by the judge delivering the opinion in Darling v. Westmoreland 52 N. H., 403: “The evidence to prove several independent propositions or distinct facts may be of different kinds, and drawn from different sources.” If evidence offered be relevant to any issue in the case, it is admissible, however incompetent it may be upon other issues. Commenting on the rule that confines the evidence to facts put in issue by the pleadings and excludes collateral issues, Doe, J., in the case just cited, says: “ This rule merely requires the evidence to be relevant. It merely excludes what is irrelevant. It is a rule of reason, and not an arbitrary or technical one, and it does not exclude all experimental knowledge.” And it was there held, that, on the question whether a pile of lumber was likely to frighten horses, evidence is admissible to show that horses passing it were or were not frightened by it.

In McCarragher v. Rogers, 120 N. Y., 526, an action to recover damages for an injury sustained by the plaintiff while working at a machine in the employ of the defendant, a person who had previously been injured while working the machine in the capacity of the plaintiff was asked, “How did the injury occur to you,” and he answered, “It jumped out of the socket in the same way;” the evidence was held to be relevant and competent as bearing upon the question of the condition of the machinery. And the court said, that, while the decisions are not in entire harmony on the question, such is the rule recognized in that state. And so in Morse v. Railway Co., 30 Min., 465, 471, which was an action by an employe of defendant to recover for an injury caused by its negligence in permitting its tracks to be and remain out of order, such evidence was held competent. The court said: “It is, of course, not competent for the purpose of showing independent acts of negligence, but we think on principle it is clearly admissible when it tends to show that the dommon cause of these accidents is a dangerous -or unsafe thing. It would be certainly competent to prove by an expert that, at a time either before or after the accident when the instrument claimed to have caused it was in the same condition as when the accident complained of occurred, he examined and experimented with it, and found it capable •of producing like results. Hence there seems no reason for excluding ordinary experience, when confined within the same limits and for the samé purpose. These facts are in the nature of experiments to show the actual condition of the instrument. Upon any issue as to the condition or safety of any work of human construction designed for practical use, evidence showing how it has served, when put to the use for which it was designed, would seem to bear directly upon the issue. It is sometimes objected that this presents new and collateral issues of which a defendant has no notice. In a certain sense every item of evidence material to the main issue introduces a new issue; that is, it calls for a reply. In no other sense does it make a new issue; its only importance is that it bears on the main issue, and, if it does, it is -competent.” We have quoted thus fully from the opinion in this case, because it seems to set forth clearly and fully the reasons for the admission of such -evidence, and to answer every objection that can be made.

The reasoning on the Massachusetts cases, cited above, and relied on by the plaintiff in error, has generally been regarded as unsound; and, for this reason, the decisions have not generally been followed as precedents.by the courts of the other states. Osburn v. City of Detroit, 18 Am. & Eng. Corp. Cases, 231, where it is said, referring to the Massachusetts cases, the weight of authority is decidedly the other way; City of Chicago v. Powers, 42 Ill., 169, 173; Moore v. The City of Burlington, 49 Iowa, 136; Walker v. Westfield, 39 Vt., 246, 251; it is here said that," A fact, that illustrates, as by an experiment the condition of the subject matter of the issue in controversy, is not collateral to the issue, but is direct evidence bearing upon it.” City of Aurora v. Brown, 12 Ill. App., 122; Darling v. Westmoreland, 52 N. H., 401; here the Massachusetts cases are considered and declared unsound. Delphi v. Lowery, 74 Ind., 520, contains an elaborate review of the cases. Cook v. New Durham, 20 Am. & Eng. Corp. cases, 386; Kent v. Town of Lincoln, 32 Vt., 591; Piggot v. Railway Company, 3 C. B., 228.

As the evidence objected to tended to prove that the lift had in it a vice, making it dangerous to operate, and that the company had notice of this from its previous behavior, there was no error in admitting the evidence, with a direction to the jury that it was to be confined to these purposes, and could not be considered on the question of the defendant’s negligence in the premises.

Judgment affirmed.

Spear and Burkett, J.J., dissent from the judgment of affirmance.


author: Dickman, J.

text:
    Turnpike Company v. Parks et al.

      Non-repair of road—Extinguishment of right to take toll—Constittitional law—Trial by jury—Due process of law.

    Sections 4914, 4916 and 4918 of the Revised Statutes, so far as they authorize the probate court to declare a turnpike road abandoned and vacated as a toll road, and thereby to become a free road, without the intervention of a jury, or the right of appeal whereby such jury could be had to determine whether the road or a part thereof has been out of repair for the preceding six months within the statutory meaning, are in conflict with:
    1. Section 5, Article 1 of the Constitution: “ The right of trial by jury shall be inviolate: ”
    2. Section 16, Article 1 of the Constitution : “ Every person, for an injury done him in his land and goods, shall have remedy by due course of law.”

      S. The provision in Section 1, Article 14 of the amendments of the Constitution of the United States, that no person shall be deprived of property without due process of law.
    (Decided October 31, 1893.)
    Error to the Circuit Court of Hocking county.

      Weldy & Buerhalts, for plaintiff in error.
    Brief of Y. Weldy.

    We claim that'sections 4914 to 4918, inclusive, of the statute, are unconstitutional, under the provisions of article 1, sections 5 and 12, of the constitution of 1851.
    These two sections have been construed by this court in numerous cases. Work v. The State, 2 Ohio St., 297; Miller and Gibson v. The State, 3 Ohio St., 488; Norton v. McLeary, 8 Ohio St., 205; Reckner v. Warner, 22 Ohio St., 275; 24 Ohio St, 471; 29 Ohio St., 671; 31 Ohio St., 626, 627; Howell v. Fry, 19 Ohio St., 556.
    While the statute provides for the abandonment of pikes, to be declared by the probate court on certain conditions therein named, etc., we claim that the act provides, in effect, for a forfeiture of private property. We care not by what name it may be designated; we must look at the results of a statute, when carried out, under a fair interpretation of the language used therein.
    What is the meaning of the term “ abandonment” in a legal sense? , It means the surrender, relinquishment, or disclaiming of private rights. When property is so abandoned, the title remains in abeyance till reduced to possession by some other person.
    The franchise of a turnpike company, by section 3530, Revised Statutes, is property subject to sale on execution. 3 Am. R. J., 46; 13 Peters, 157; Bouvier’s Raw Dictionary.
    The statute under consideration confers upon the probate courts the extraordinary power of forfeiture and confiscation of property, indefinite in extent. If a probate judge, sitting as a court, has the power under this statute to declare the forfeiture of one dollar’s worth of property, he has as well the power to declare the forfeiture of property ' worth millions of dollars. The exercise of such a power by one man, without the right of a trial by a jury, or the right of appeal, is in contravention of the very spirit of our institutions, and an enlightened jurisprudence.
    We insist, however, that the statute under which this proceeding was brought, was not intended by the legislature to apply to turnpike companies which were charged with merely omitting or neglecting to repair their roads; but it was intended for turnpike companies which had, in fact, abandoned their roads, no longer repairing or paying any attention to them, and neglecting to elect officers of the same.
    ,S. H. Bright and R. F. Price, for defendants in error.
    It does not appear in the record of this case, when the plaintiff in error became incorporated. But the rule is well established that every presumption is in favor of the validity of the proceedings and judgments of the courts below; and if necessary to support these proceedings and judgments, this court will assume that this turnpike company was incorporated, since the adoption of the present constitution, and hence that, article 13, section 2, is applicable to it.
    But again if necessary to support the judgment of the court below, this court will presume that the corporation was formed after the act of March 28, 1878, and the acts therein referred to. See vol. 75 Ohio Raws, 85.
    It took its corporate powers, franchises and property subject to the provisions of section 4914 et. seq., Revised Statutes. It was and is presumed to know the law both constitutional and legislative; and it must abide by the terms of the title under which it held. It wilfully abandoned its turnpike, as must be conclusively presumed from the record; and it now complains of the loss of what it had knowingly abandoned.

      But it may be said that the petition in the probate court shows that it had not abandoned its right to take toll. No, it was hanging onto the high prerogative conferred upon it of demanding tribute of every citizen whose business called him that way, but had apparently forgotten its duties to the state and to the public. It was a corporation for the purpose of benefits, but not for the purpose of burdens.
    This is not taking private property nor interfering with vested rights. The title of the corporation has terminated by the terms of the contract. Blackstone’s Com., page 484; State v. Mohler, 8 Ohio St., 548; Beach on Private Corporations, sections 26 and 28; Taylor on Corporations, section 459.
    Again, it may be said that all that the courts have done is to find that the right to take toll has ceased. No one seriously doubts the right of the state to revoke a franchise, for the nonuser or misuser of the same. Beach on Corporations, section 54; State v. Farmer's College, 22 Ohio St., 487; see also notes to State v. Achison etc., R. R., 8 American State Reps., 164; 7 same, 717.
    But if this latter provision were held to be unconstitutional, still the other provisions might stand.
    This would leave the corporation with the right to dispose of whatever else it had, but its right to take toll would be extinguished. State v. Frame, 39 Ohio St., 399; and cases there cited; Cinct. v. Bryson, 15 Ohio St., 625; Exchange Bank v. Hines, 3 Ohio St., 1.
    The presumption is always in favor of the validity of the law. Cinct. W. & Z. R. R. v. Clinton Co., 1 Ohio St., 81; Goshorn v. Purcell, 11 Ohio St.,641; Palestine v. Turnpike Co., 19 Ohio St., 369.
    Plaintiffs in error claim the right to a jury by virtue of section 5 of article 1 of the constitution. It did not create the jury, nor any new rights thereto, but merely undertook to perpetuate them. The “jury” there meant was the common law jury, and the “rights” to such trial were those that existed under the common law. Work v. State, 2 Ohio St., 296; 22 Ohio St., 291. Therefore, if plaintiffs in error claim the right.to jury under the guaranty of said section 5, they must first show that such right existed at common law. We deny that they had such right at common law, even though the action were, as they claim, the exercise of eminent domain. Williard v. Hamilton, 7 Ohio 115, 2d Syl. and latter half of decision.
    They claim the right to a jury by virtue of section 19, of article 1 of the constitution.
    The statute under which this action was brought, neither provides for, nor allows any compensation; and that being the only thing with which the jury had to do, under said section, there was in this case no duty for the jury.
    It would seem that the jury question is settled by section 5130 and 5131, Revised Statutes. They are a part of our original code; were probably copied from the New York Code, and were adopted, after careful consideration, by the code commissioners. Their constitutionality has never been questioned; and it seems strange that at this late day, it would be claimed that an issue of this kind must be tried by a jury.
    No authority is cited by counsel for plaintiff in error, showing that a case of this kind is triable by jury, and we think none can be found. The following cases reflect on the question: Massie v. Stratford, 17 Ohio St., 597; Hagany v. Cohen, 29 Ohio St., 82; 64 Mo., 415.
   Dickman, J.

William Parks and others, the defendants in error, filed their petition in the probate court of Hocking county, Ohio, against the plaintiff in error, The Salt Creek Valley Turnpike Company. In it they allege that they are freeholders of Hocking county; that the defendant is a corporation organized under the laws of Ohio, and claims to own the toll-road known as the Salt Creek Valley turnpike, situate in Hocking county, and also claims the right to take, and is taking toll thereon.

* They further allege, that for more than six months, last past, to-wit, for the period of two years, the road has not been kept in repair, but, that the defendant has negligently suffered and allowed the same to be and remain, during all of such time, and is now, uneven, infirm, and unsubstantial, and less than sixteen feet in width of artificial bed, and so narrow in most of its length as not to permit the passing of wagons thereon; that most of the repairs made to the road during such time, have been of sand and inferior creek-gravel, both of which materials were and are entirely unfit and unsuited for such purpose; that the bridges and culverts on the road are and have been during such time, out of repair, so as to inconvenience and endanger persons and animals traveling thereon. The prayer of the petition is that the defendant be notified, as required by law; and that upon hearing, the road may be adjudged and declared abandoned and vacated as a toll-road.

To the petition there was a demurrer, which was overruled, and the turnpike company excepted to the ruling. The company thereupon filed an answer, and therein said:

First—It admits that it is a corporation organized under the laws of Ohio, and claims to own, and does own the toll-road described in the petition; and claims the right to take, and is taking and exacting toll thereon. Second—It denies each and every other allegation in the petition.

The company demanded a jury trial. The demand was overruled, and to that ruling the company excepted. The cause came on for hearing, and the court having heard the evidence and argument of counsel, found that the road in the petition described had been for more than six months next preceding the filing of the petition, out of repair, as therein stated, and the same was declared abandoned and vacated as a toll-road. The company gave notice of its intention to appeal the cause to the court of common pleas. It also moved for a new trial, for the reasons, among others, that the court erred in overruling the demurrer filed; that the finding and judgment were against the law applicable to the case; and that the court erred in overruling the demand of the company for a jury trial. The motion for a new trial was overruled and exception taken. The cause was appealed to the court of common pleas, and also carried up on error. The appeal was dismissed by that court, on the ground that it had not jurisdiction; and the judgment, on error, was affirmed. The cause was then taken to the circuit court on petition in error, and the judgments of the probate and common pleas courts were by that court affirmed. This court is asked to reverse the judgment of the circuit court.

The proceedings to have the Salt Creek Valley turnpike declared abandoned and vacated, were instituted under sections 4914,4915,4916, 4917 and 4918 of the Revised Statutes. Those sections provide as follows:

“Section 4914. Any turnpike or plankroad in the state upon which toll has been or may be authorized to be taken, which has been or may hereafter be out of repair for the period of six months, shall be deemed and held abandoned; and upon such abandonment being declared, as hereinafter provided, it shall be unlawful for any company or person owning or claiming to own such road, or any person owning or claiming to own the right to take tolls thereon, or any person in behalf of such company or person, to take, demand, or receive toll for the use of such road, or so much thereof as may be so declared abandoned.”
“Section 4915. Any twelve or more freeholders of a county in or through which any toll turnpike or plankroad, or any part thereof, has been or may hereafter be constructed, may present to the probate court of any county in which such road or part thereof is situate, their petition, stating that such road or part thereof has not been kept in repair for the preceding six months, and prajdng that the same may be declared abandoned and vacated as a toll road; to which petition the company or persons owning or claiming to own such road, and all persons owning or claiming to own the right to take toll thereon, shall be made defendants.”
“Section 4916. On the filing of such petition the court shall fix a time for the hearing thereof, not less than thirty days nor more than forty days thereafter, and issue a notice in writing to the defendants, stating the filing of such petition, and the day fixed for hearing thereof, and requiring the defendants to appear and answer, which notice shall be served in the same way as a summons in civil cases; and on the hearing of such petition, if the court find that the road or part thereof has been out of repair as aforesaid, the court shall declare the same abandoned and vacated as a toll road.”

Section 4917 provides for giving notice by publication,, if any one of the defendants is a non-resident of the state.

“Section 4918. When a toll road, or part thereof, has been heretofore or shall be hereafter declared abandoned and vacated as aforesaid, it shall thereafter become a free road, to be kept in repair as provided in chapter ten.”

If any company fail to keep in repair its road outside the limits of a municipal corporation, for five days successively, or fail to build or rebuild any of the bridges or culverts across any or all of the streams crossing its road, for a period of six months, the company, under the statute, will become liable to any person injured, for the damages sustained by reason of such road or bridge being suffered to remain out of repair by the neglect of the company. And, no toll can be lawfully demanded and received at the gates between which the defective place or bridge is located, until the parts of the road found defective by duly appointed inspectors are fully repaired, or such order is made by the appellate court as to repairs and collection of tolls, as it may deem just. Sections 3484, 3485 Revised Statutes. But the immediate object of the proceedings against the plain tiff in error was to totally destroy its right to demand and receive toll, and to convert its turnpike into a free road.

The right to take toll upon a turnpike is a franchise (Seymour v. Turnpike Co., 10 Ohio, 476), and when properly exercised becomes a useful and valuable right—a source of income and the means of reimbursing the company for keeping the road in repair for safe and convenient use. And this franchise, which in the case at bar it is sought to extinguish, is to be regarded as property in the enlarged sense of the term. By statute, all turnpikes under the control of individuals or corporations, and held as property or as a franchise, is liable to sale upon execution, “ in the same manner as other property.” Section 3530 Revised Statutes. The purchaser of any such road upon the confirmation of the sale, will be entitled to hold and exercise all the corporate franchises purchased at such sale. Section 3533 Revised Statutes. When there is an unsatisfied judgment against a turnpike company, a levy may be made upon the right of the company to take toll, “which right the officer shall advertise and sell as personal property.” Section 3535 Revised Statutes.

The laws relating to the foreclosure of mortgages upon real estate are applicable to the foreclosure of mortgages upon turnpikes and plank roads; and the purchaser at foreclosure sale of any such road will acquire and be entitled to exercise all the corporate franchises purchased, as fully as they belonged to such company before such sale, in any name that may be assumed by such purchaser. Sections 3493, 3494. It is thus manifest that the legislature has indued the franchise of taking toll upon turnpikes with the attributes of property, and has exercised its power of subjecting such franchise to execution at law and sale in chancery proceedings as it has other property.

The term property, as said in Caro v. Metropolitan Elevated Railroad Co., Superior Court of N. Y., Gen’l Term, January, 1880,19 Am. L. Reg. N. S., 384, is of the largest import, and embraces every mode in which it may be applied to public use, and extends to every species of valuable right and interest, and includes real and personal property, easements, franchises and incorporeal hereditaments. It is an elementary principle that “property consists in the free use, enjoyment and disposal of all one’s acquisitions without any control or diminution, save by the laws of the land.” 1 Black. Comm., 138. Property held by an incorporated company stands upon the same footing with that held by an individual, and a franchise cannot be distinguished from other property. “A franchise is property, and nothing more; it is incorporeal property, and it is its character of property only which imparts to it value, and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyment.” Daniel J., in West River Bridge Co. v. Dix, 6 How., U. S., 507, 534.

When the turnpike was declared abandoned and vacated as a toll road by thg probate court, under the operation of the statute, the road was to become a free road, and its francbise to collect toll thereby virtually forfeited. The judgment was predicated upon a finding by the court, that the xoad had been out of repair for the preceding six months, hut no jury was impanelled or allowed to inquire and determine whether the road was sufficiently out of repair to justify the inference that the company had abandoned it. There might be an omission to keep it in every respect in perfect repair ,for six months, and yet, the road might not be so much out of repair, as to furnish a reasonable presumption that it had been abandoned by the company. The road should be in so unfit a condition for all kinds of public travel, as fairly to lead to that conclusion: But to determine the existence of a state of facts upon which to base a destruction of property rights and interests, strict regard ■should be had in the investigation to the methods and safeguards prescribed by the constitution.

It is therefore urged in behalf of the turnpike company, that certain of the sections of the statute under which the proceedings were instituted to declare the road abandoned •and vacated, are in conflict with section 5, article I of the constitution: “ The right of trial by jury shall be inviolate.” In none of those sections is any provision made for a jury trial, or for the right to appeal whereby such jury could be had. The facts to be determined, namely, to what extent and how long the road had been out of repair, involved the destruction of a valuable corporate right of the company; and its answer filed in the probate court contained a denial of all allegations as to its failure to keep the road in repair. With such an issue, we think the constitution entitled the company to a jury trial. In Howell v. Fry, 19 Ohio St., 550, there was a summary proceeding before the probate court, under the act of February 26, 1843 (S. & C., 618), on complaint of an administrator against a party charged with embezzling and carrying away certain articles of property belonging to the estate. To the extent that the statute professed to authorize the court to render judgment for the value of the property where there was a controversy between the parties, it was pronounced unconstitutional. And this court said: “If the defendant denied the truth of the charge, he had a constitutional right to a jury trial, and could not be deprived of that right by this summary proceeding, in which no provision is made for a jury trial, or for the right of appeal. The statutory provision authorizing a judgment can only be sustained as constitutional and valid in so far as it applies to a case where the defendant does not controvert the truth of the complaint.”

The section in the present constitution preserving inviolate the right of trial by jury, is found in the constitution of 1802, and in the same words. It is a guarantee of the continuance of a right recognized in the Great Charter, and substantially embodied in the constitutional compact of every state, as the great safeguard of life, liberty and property. At common law the want of reparation of highways, when visited with fine, penalty and forfeiture, was the subject of inquiry by a jury. In England, the inhabitants of the several parishes at large are, prima facie and of common right, bound to repair all highways lying within them, unless by prescription or otherwise they can throw the burden upon particular persons. For the non-repair of highways including turnpike roads, indictments are preferred against the respective parishes in which they are situate, and the parishes are subjected to fines, penalties and forfeitures, as the jury by their verdict find the defendant guilty of failing to keep the highways in proper repair. Woolrych on Ways, Chap. 6, 11.

In this country indictment is an appropriate remedy against towns for want of repair, and the obligation imposed upon them to maintain and repair highways as prescribed by statute, is very much the same as at common law —convenience and safety being the essential conditions of a well maintained highway both at common law and by statute. But, whether or not any given highway fulfils these conditions is a mixed question of law and fact, to be determined by the jury upon the circumstances of each particular case under proper legal instructions from the court. Angell & Dur. High., §§ 259, 275; Commonwealth v. City of Newburyport, 103 Mass., 129; Bragg v. City of Bangor, 51 Me., 532. And in determining the want of reparation, if there be any, it is especially within the province of a jury, rather than of the court, to view the premises, consider the geographical features of the country, the location of the road, the difficulty of keeping it in a better condition without an unreasonable expense, the season of the year, the kind and amount of travel having occasion to pass over the road, with other considerations of a kindred character.

The determination of the issues in the probate court be-, ing properly within the domain of a jury; and as the result of the court’s finding the road to have been out of repair for the preceding six months was, that the franchise of the company to take toll was adjudged under the statute to have been extinguished, it may well be asked, whether the company was not, in contravention of the constitution of the state and of the United States, thereby deprived of its property “without due course of law,” or its equivalent, “due process of law,” when denied the privilege of a jury trial. If the legislature is vested with the power, under the constitution, to authorize a probate court to destroy valuable property rights of a turnpike company, because its road has been out of repair for the period of six months, it may be inquired, why may not the legislature authorize that court to do the same thing, although the road has not been out of repair longer than one day, for, it is not the abatement of a nuisance that is the subject of inquiry, but the taking and destruction of private property without a trial by jury.

It would be very difficult to frame a definition of the term “due course of law,” or “due process of law,” which would be accurate, complete and appropriate under all circumstances. But it is very obvious that every thing which takes the form of an enactment is not therefore to be deemed the law of the land, or due course or process of law. If this were so, then decrees and forfeitures in all possible forms, and acts confiscating the property of one person or class of persons, or a particular description of property, upon some view of public policy, where it could not be said to be taken for a public use, would be the law of the land,

In Risser v. Hoyt, 53 Mich., 185, the act of 1833 to prevent preferences among creditors and to distribute the debt- or’s property equally, was held to be void, as violating (1) the constitutional provision which secures the right of trial by jury, since it looks to a summary disposition of cases which necessarily turn on questions of fact; and (2) the prohibition against taking property without due process of law. Under section 2 of the act, the court was empowered to proceed summarily upon the filingof a creditor’s petition,, and appoint a receiver who should take possession of all the debtor’s property, and marshal and distribute the same among the several creditors. Champion, J., in delivering the opinion of the court, said: “It was against the enactment of new laws which ignored the proceedings according to the course of the common law, and provided summary methods of determining legal rights, that the protecting shield of the constitution was required. The true criterion is, does the act destroy or materially impair the right of trial by jury according to the course of the common law, in cases proper for the cognizance of a jury? The nature of the controversy between the parties, and its fitness to be tried by a jury according to the rules of the common law, and not the nature of the tribunal, nor the summary mode of proceeding therein, should decide the question. * * Under section 2 of this act two facts, at least, must concur before the debtor can be deprived of his propert}'-; 1. He must owe three or more debts, two at least amounting in the aggregate to not less than $200; 2. He must have done some act, or omitted to do some áct, which this section prescribes shall entitle two or more creditors to file a petition. These acts are treated as a fraud upon the rights of other creditors, and constitute the gist of the proceedings. Such issues, involving the elements of fraud both as to the debtor and creditor alleged to have been preferred, are such as are peculiarly appropriate for a jury, and the right to have such trial cannot be taken away by a summary proceeding of this kind. * * From what has been said concerning the deprivation of the right of trial by jury, it is apparant that the act deprives parties of their property without due process of law.”

In the federal courts it is the accepted doctrine, that while in actions in rem in admiralty property may be divested from an owner without the verdict of a jury, yet, in any proceeding at common law, even proceedings in rem, a citizen of the United States cannot be divested of his property except by verdict of a jury, under due process of law, in a proceeding in which he is in some manner a party, having opportunity to be heard, and having a day in court. In cases of seizures on land involving condemnation and forfeiture, the right of trial by jury is not infringed, for although in such cases the proceeding must be in general conformity to the course in admiralty, issues of fact, on the demand of either party, must be tried by a jury. The J. W. French, U. S. District Court, E. D. Virginia, October, 1882, 13 Fed. Rep., 916; Union Insurance Co. v. U. S., 6 Wall., 765; Armstrong's Foundry, 6 Wall., 769; Morris's Cotton, 8 Wall., 507. It is not to be claimed that trial by jury is necessarily implied in the phrase “due course of law,” or “due process of law.” Within the meaning of the constitution, there may be due process of law in proceedings in chancery, in the general system of proceedure for the levy and collection of taxes; and, under the constitution of 1802, the value of private property taken for public uses could rightfully be assessed by commissioners. Kelly v. Pittsburg, 104 U. S., 78; Willyard v. Hamilton, 7 Ohio, 2 pt., 111. But, upon reason and the weight of authority, we are of opinion, that in the case at bar the plaintiff in error was entitled to a jury in the probate court; that to deprive the turnpike company of the right to demand and receive toll for the use of its road without a trial by jury, would be to take its property without due course or process of law; and that sections 4914, 4916 and 4918, of the Revised Statutes, under which the defendants in error instituted proceedings to have the company’s road declax ed abandoned and vacated, so far as they contain no provision for a jury trial, or an appeal whereby such trial may be had, are in conflict with sections 5 and 16, article I of the constitution of Ohio, and section 1, article XIV of the amendments of the constitution of the United States.

But while the right to demand and receive toll cannot be extinguished without a finding by jury trial that the turnpike has been so out of repair within the statutory meaning as properly to be deemed and held abandoned, it is urged that in addition to the franchise to collect toll, the plaintiff in error also owns the road, its bridges and culverts, the very gravel on the road, etc.; and it is claimed in the record, though not in the brief of counsel, that to declare the turnpike a free road, and subject its other property to the free use of the public without the consent or reimbursement of the company, would be to take private property for public use without first making compensation therefor in money, and hence in violation of section 19 of article I of the constitution. When it is found expedient to convert a toll-road into a free road, a mode is prescribed by statute whereby county commissioners may purchase the toll-road at a price not exceeding the statutory appraisal, and pay the company in money or in bonds to be issued as specified in the statutes. Section 3498« Revised Statutes, et seq. It becomes therefore a question for consideration, how far, if the franchise to collect toll maybe extinguished after a jury trial, the other property of the turnpike company maj'' be subjected to the free use of the traveling public without compensation therefor to the owners. But that question, with the insufficiency of facts disclosed in the record, we cannot satisfactorily consider in the case at bar.

With the views herein expressed, we are of opinion that the judgments of the circuit court, court of common pleas and probate court should be reversed, and the petition in the probate court dismissed for want of jurisdiction in that court.

Judgment accordingly.

Wirrrams, J., dissents.

Spear, J., dubitante.


author: By the Court:

text:
    Turnpike Company v. Gay et al.
    (Decided October 31, 1893.)
    Error to the Circuit Court of Preble county.

      0. Sheppard and J. W. King, for plaintiff in error.

      Free7nan & Gihnore, for defendants in error.
   By the Court:

The defendants in error, Charles E. Gay and others, filed their petition in the probate court of Preble county against the plaintiff in error, The West Alexandria and Euphemia Turnpike Road Company, under sections 4914, 4915, 4916, 4917 and 4918 of the Revised Statutes of Ohio, praying that a portion of that company’s turnpike road in Preble county might be declared abandoned and vacated as a toll road, by reason of its not having been kept in repair for the preceding six months.

The company filed a demurrer to the petition on the ground that the court had no jurisdiction of the subject matter of the action. The court sustained the demurrer, and the plaintiffs not desiring to amend, it was adjudged that the petition be dismissed, and that the company recover its costs. On error, the court of common pleas affirmed the judgment of the probate court. The circuit court, on petition in error, reversed the judgment of the court of common pleas and probate court, overruled the demurrer filed by the company to the plaintiff’s petition, and remanded the cause to the probate court for further proceedings. This petition in error is prosecuted to reverse the judgment of the circuit court.

Eor the reasons set forth in the opinion of the court in the case The Salt Creek Valley Turnpike Company v. Wiliam Parks et al., decided at the present term, we think, .that the judgment of the circuit court should be reversed, and the judgment of the court of common pleas and probate court affirmed.

Judgment accordi7igly.