author: Minshall, O. J.

text:
    The Sun Fire Office of London v. Clark et al.

      Mortgage — Insurance policy — Deed absolute on its face is a mortgage, when — Effect of provision in policy as to change of interest in property — Additional insurance— Words “title,” “interest” and “possession” defined — Section 3643, Revised Statutes.

    1. A deed, absolute on its face, but shown by a separate wi’itten agreement to be a security for the pex’fox’mance of a personal obligation of the grantor to the grantee, is a mortgage.
    2. A policy of insurance containing a provision, that if any change take place in the title, interest or possession of the property insured, by sale, transfer or conveyance, without the consent of the insurer, the policy shall become void, is not invalidated by the making of a mortgage. The words ‘ ‘title’ ’ or ‘ ‘possession, ’ ’ as here used, mean an actual change in law and equity, and the word “interest” means a change in the insurable interest of the owner of the property, neither of which is affected by the execution of a mox'tgage.

      3. Where a policy of insurance stipulates that it shall become void by the taking of additional insurance without the consent of the insurer, such stipulation is not within the provisions of section 3643, Revised Statutes, for the reason that additional insurance does, as a matter of law, increase the risk; and if taken without the consent of the insurer, invalidates the policy.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Cuyahoga county.
    The action below was upon a policy of insurance in the sum of $2,000, made and delivered by the Sun Fire Office of London to Ida A. Clark, to indemnify her against loss by fire on her dwelling house, and payable to George W. Pringle as his interest might appear, his interest being that of a mortgagee. The first defense of the answer admitted certain allegations, and then denied all the other averments of the petition. The questions, however, arise upon the second and third defenses in the answer and the issues made thereon. These defenses are as follows:
    Second Defense.
    “Further answering said petition, defendant, for a second defense says, that it is one of the express conditions and provisons of the policy of insurance so made by it, and a part thereof, that the same should become void, unless consent in writing was indorsed thereon by or on behalf of the defendant, if any change took place in the title, interest, location or possession of the property insured (except in case of succession by reason of the death of the insured), whether by sale, transfer or conveyance, in whole or in part, or by legal process or judicial decree; and defendant alleges that after the making of said policy, and by deed dated November 7, 1889, the plaintiff, Ida A. Clark, conveyed the premises, upon which stood the house by said policy insured, to one Clark A. Rhodes. Her husband, F. W. Clark, joined in said conveyance (which is recorded in volume 460, page-326, of Cuyahoga county records), without notice to or consent of this defendant, which was ignorant of the same until after the destruction of said house b'y fire. By which conveyance said policy became void and of no force and effect.”
    Third Defense.
    “Further answering said petition, defendant, for a third defense says, that it is one of the conditions of the policy of insurance so made by it, and a part thereof, that the same should become void, unless consent in writing was indorsed thereon, by or on behalf of the defendant, if the insured had, or should after the making- of the same, obtain any other policy or agreement for insurance, whether valid or not, on the property in said policy mentioned or any part thereof; and it alleges that on or about the 1st day of December, 1888, the plaintiff, Ida A. Clark, obtained a policy of insurance of the Springfield Fire and Marine Insurance Company on the same house insured by the said policy of defendant, to the amount of $2, - 000, and on the piano, household furniture and family wearing apparel- while therein contained to the amount of $500, without any notice to this defendant or its consent thereto, and the loss on ■said buildings was paid by said insurance company in pursuance of said policy; whereby said policy sued upon herein became and has been ever since, utterly void and of no effect whatever.”
    To these defenses the plaintiff replied as follows:

      First, denying the averments of the second defense, she averred: “That at the time .mentioned she and her husband mortgaged said property to said Clark A. Rhodes, the instrument being in form only, a deed, and that at the time of said fire said mortgage had not become absolute, nor was the debt secured thereby due and payable. She further avers that she immediately gave notice of such mortgage to said company both to the agent through whom said policy was issued, to the general agent of said defendant in Cleveland, Ohio, and to the company itself, and received from none of these persons or from said defendant any intimation that said policy would be forfeited on account of said mortgage, and on account thereof she did not as she might and would otherwise have done, procure other insurance in place of the policy referred to in said petition.
    ■ “Replying to the third defense contained in said answer, this plaintiff says, that immediately upon obtaining the policy of insurance mentioned in said third defense, she notified said defendant of said insurance, who consented thereto.”
    The case was tried to a jury, evidence was offered by both parties upon the issues joined as appears from a bill of exceptions taken and made a part of the record. At the close of the evidence the court instructed the jury as follows:
    “Under the construction which I have placed upon section 3643, of the Revised Statutes of Ohio, and the pleadings and proof in the case, I deem it my duty to direct the jury to return a verdict for plaintiff for the amount of the policy and interest from March 12,1890. ”
    Exception was taken to the ruling of the court; a motion was made for a new trial and overruled, and judgment entered on the verdict, which was affirmed by the circuit court. The ruling of the court is assigned for error here. •

      II O. Banney,'and O. W. Fuller, for plaintiff in error.
    1st. Were the defenses set up by the defendant below, if established, sufficient in law in the absence of any controlling statute to the contrary?
    2d. If these defenses, if established by the evidence, are otherwise good, are they taken away by the effect if section 3643, Revised Statutes, commonly known as the Howland law?
    If this court should find from the evidence that there was in reality an absolute conveyance in fee, there could then be no question but that defendant in error must fail to recover. Insurance Co. v. Archer, 36 Ohio St., 612. But even if in the view of the court it should be merely a, mortgage, we believe the authorities support the position that under the peculiar wording of the provision in this policy, there would still be a forfeiture of the policy.
    A mortgage is an alteration of ownership within • the meaning of the policy which inhibits an alteration of. ownership upon penalty of forfeiture. Edmunds v. Insurance Co., 1 Allen, Mass., 311. And so it is a violation of the provision against sale or alienation in whole or in part.» Abbot v. Hampden Mutual Fire Ins. Co., 30 Me., 414.
    An insurable interest may exist independent of the title to the property. May on Insurance, section 271; Hitchcock v. Insurance Co., 26 N. Y., 68; Savage v. Insurance Co., 52 N. Y., 502.

      The breach of the condition with reference to additional insurance as set up in plaintiff in error’s third defense, if sustained by the evidence, would, beyond question, under the authorities, constitute a good defense to this action, and as there was evidence on both sides as ■ to whether or not there was a breach of this condition, it was a question for the determination of the jury. Insurance Co. v. Leslie, 47 Ohio St., 415; Jeffries. Life Insurance Co., 22 Wall., 47; Phoenix Insurance Co. v. Railway Co., 28 Ohio St., 69.
    Where there is possible ambiguity, and the intention of the legislature cannot with absolute certainty be determined from the language of the act, we are compelled to have recourse to rules of construction which the courts have said must apply in such cases. Insurance Co. v. Wells, 42 Ohio St., 519; Insurance Co. v. Leslie, 47 Ohio St., 409; Riley v. Insurance Co., 43 Wis., 449; Sleeper v. Insurance Co., 56 N. H., 401; 64 Texas, 582; Brigel v. Starbuck, 34 Ohio St., 284; Woodward v. Railway Co., 10 Ohio St., 121; Shultz v. Cambridge, 38 Ohio St., 659; 39 Ohio St., 312; Myer v. Seaberger, 45 Ohio St., 234; Insurance Co. v. Webster, 7 C. C. Rep., 511; Insurance Co. v. Railway Co., 28 Ohio St., 69; Savage v. Howard, 52 N. Y., 505.

      White, Johnson & McGaslin, for defendants in error.
    I. The owner of the fee of unencumbered property has an insurable interest therein to the extent of its full value. If, after giving a mortgage on the property to secure a debt, on which he is personally liable, he has an insurable interest to less than the full value, then the mortgage has, changed his insurable interest. If, on the other liand, his'insurable interest does still extend to the full value of the insured premises, then it is clear the mortgage has not changed his insurable interest. Now it is well settled that the insurable interest of the owner of property mortgaged to secure a debt on which the owner is personally liable, extends to the full value of the mortgaged property, and this even though the property is mortgaged to its full value. Insurance Co. v. Stinson, 103 U. S., 25; Guest v. Insurance Co., 66 Mich., 98 ; 11 Am. & Eng. Ency., 314, note 11; 315, note 2; Higginson v. Dall, 13 Mass., 96, French v. Rogers, 16 N. H., 177 and cases cited ; Gordon v. Mass. F. M. & Ins. Co. 2 Pick., 239; Strong v. Insurance Co., 10 Pick., 40; Carpenter v. Insurance Co., 16 Pet., 495; Buffalo Steam Engine Works v. Insurance Co., 17 N. Y., 401.
    We shall now proceed to cite additional authorities establishing the following three propositions :
    1. The subsequent giving of a mortgage, unaccompanied by possession does not operate as a change, alteration or transfer of interest in insured property, within the meaning' of a condition in the policy prohibiting change, alteration or transfer of interest or title.
    2. Nor does it operate as a change, alteration or transfer.of title in the meaning of such a condition in the policy.
    3. In the' application of the last two propositions it is immaterial what is the form of the instrument, whether a deed absolute on its face, but shown by parol or written defeasance to be only a mortgage ; or a trust deed to secure a debt; or an instrument in form of a mortgage. Jecko v. Insurance Co., 7 Mo. App., 308; Judges. Insurance Co.,
      152 Mass., 521; Dolliver v. Insurance Co., 128 Mass., 315; Kronk v. Insurance Co., 91 Pa. St., 300; Insurance Co. v. Kelly, 32 Md., 421; Insurance Co. v. Beck, 43 Md., 358; Ellis v. Insurance Co., 32 Fed. Rep., 646; Van Dusen v. Insurance Co., 1 Robt., 55; Fernandez v. Insurance Co., 3 Robt., 457; Hitchcock v. Insurance Co., 26 N. Y., 68; Bates v. Insurance, Co., 1 Cin. Sup. Ct., 523; Insurance Co. v. Feagin Bros., 62 Ga., 515; Wood v. Insurance Co., 78 Hun., 109; Hammel v. Insurance Co., 54 Wis., 72; Grable, Trustee, v. Insurance Co., 32 Nev., 645; Taylor v. Insurance Co., 49 N. W., 994; Quarrier, Trustee, v. Insurance Co., 10 W. Va., 507; Bryan v. Insurance Co., 145 Mass., 389; 1 Biddle on Insurance, section 213 ; Barry v. Insurance Co., 110 N. Y., 1; Smith v. Insurance Co., 50 Me., 96 ; Friezen v. Insurance Co., 30 Fed. Rep., 352; S. C., 15 Ins. J., 513; Carson v. Insurance Co., 39 Am. Rep., 584; S. C., 14 Vroom, 300, Insurance Co. v. Spankneble, 52 Ill., 53; Insurance Co. v. Walsh, 54 Ill., 164; Insurance Co. v. Eddy, 55 Ill., 213; Loy v. Insurance Co., 24 Minn., 315; Hanover Insurance Co. v. Connor, 20 Bradw., 297; Insurance Co. v. Lasher Stocking Co., 66 Vt., 439; Insurance Co. v. Barwick, 36 Neb., 224; Shepherd v. Insurance Co., 38 N. H., 232 ; Byres v. Insurance Co., 35 Ohio St., 606; Insurance Co. v. Haven, 95 U. S., 242; Hill v. Cumberland, Valley Mutual Protection Co., 59 Pa. St., 474; Masters v. Insurance Co., 11 Barb., 624.
    We think, therefore, it is clearly settled by the cases cited that the court was right in directing’ the jury to return a verdict for the plaintiff, so far as concerns any defense growing out of the mortgage to Rhodes.

      II. "We now come to the second question, the construction of the so-called Howland law, or section 3643 of the Revised Statutes of Ohio. We may set the following well established rules govering the interpretation of statutes: “When the expression in a statute is special or particular, but the reason is general, the expression should be deemed general. ” When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the objects and the remedy in. view. Several acts in pari materia, and relating to the same subject, are to be taken together, and compared, in construction of them, because they are considered as having one object in view, and as acting upon one system. For the sure and true interpretation of all statutes, whether penal or beneficial, four things are to be considered: What was the common law before the act; what was the mischief against which the common law did not provide; what remedy the Parliament had provided for to cure the defect and the true reason of the remedy. It was held to be the duty of the judges to make such a construction as should repress the mischief and advance the remedy. 1 Kent Com., 464; Potter’s Dwarris, on Statutes, 184; 1 Black. Com., 87; 23 Am. & Eng. Ency. of Law, 414; Wilbur v. Payne, 1 Ohio, 251; Burgett v. Burgett, 1 Ohio, 469; Admx. of Tracy v. Admr. of Card, 2 Ohio St., 431; Slater v. Cave, 3 Ohio St., 85; Pollock v. Speidel, 27 Ohio St., 86; Hays v. Lewis, 28 Ohio St., 326; State v. Harmon, 31 Ohio St., 264; Gas Light Co. v. Avondale, 43 Ohio St,, 264; Cross v. Armstrong, 44 Ohio St., 613; Sawyer v. State, 45 Ohio St., 344; Houck v. State, 45 Ohio St., 439; Henry v. Trustees, 48 Ohio St., 674; Insurance Co. v. Webster, 7 O. C. C. Rep., 40; Delancy v. Insurance Co., 52 N. H., 581; White v. Insurance Co., 4 Dillon, 177; Emery v. Insurance Co., 52 Me., 322; Insurance Co. v. Curry, 13 Bush; Insurance Co. v. Rudwig, 80 Ky., 223; Wall v. Assurance Co., 32 Fed. Rep., 273; State v. Pugh, 43 Ohio St., 113; Moody v. Insurance Co., 32 W. L. B., 402; Insurance Co., v. Leslie, 47 Ohio St., 409.
   Minshall, O. J.

1. The first question pre-1 sented arises on the second defense. The evi-j denee sustained the reply of the plaintiff to the[ effect that the instrument was simply a mortgage.!

A separate written instrument was gpven by Rhodes stating, that the conveyance was given to secure the payment of a promissory note to him, by Clark and wife, for $2,000, and his liability for them on an injunction bond; and expressly stipulated that the conveyance “was in the nature of a security ” to him for the above purposes. Hence, it was simply a mortgage. It seems well settled m this state and elsewhere, that the making of a mortgage does not violate a provision in a policy of insurance, that any change in the title, interest or possession of the assured in the property, without the assent of the insurer, shall avoid the policy.

The mortgag’e being- simply a security for the debt, is extinguished by its payment without any re-conveyance. The mortgage of itself does not make the mortgagee a freeholder, and a judgment recovered against him does not become a lien on the land, nor is it liable to the dower-rights of his wife. It has none of the incidents of a legal or equitable title. True, upon foreclosure and sale, the mortgagee may by purchase at the sale become the owner of the land; but this is a right he enjoys in common with all others. It is also true, that as between the mortgagor and mortgagee, the latter, on condition broken, is regarded as the legal, but not as the equitable owner. The mortgagor remains the equitable owner until the property is sold under the order of the court. Until then he may, by paying the debt, redeem the land. So that his insurable interest in the property remains the same — which is the interest meant by the use of the word in the language of the policy, where it occurs. If lost by fire he remains liable on the debt, and has, by reason of the loss, so much the less property with which to pay it. Hence, he has the same interest in its preservation after as before, making the mortgage; and the moral hazard of the insurer is not increased. Byers v. Insurance Co., 35 Ohio St., 606; Kronk v. Insurance Co., 91 Pa. St., 300; Insurance Co. v. Stinson, 103 U. S., 25, 29; Barry v. Insurance Co., 110 N. Y., 1; Judge v. Insurance Co., 132 Mass., 521; Bryan v. Insurance Co., 145 Mass., 389; Insurance Co. v. Spankneble, 52 Ill., 53; Insurance Co. v. Lawrence, 2 Peters Rep. 25; Jecko v. Insurance Co., 7 Mo. App., 308; Guest v. Insurance Co., 66 Mich., 98; May on Insurance, see. 272.

The general current of authority is in accordance with these cases; and while a different view has been taken by the courts of some of the states, it will be found that, as a rule, this has proceeded from the old conception that a mortgage is to be regarded as a conveyance; or from a more rigid adherence to the terms of the policy, in disregard of the rule that provisions imposing forfeitures should be strictly construed.

In giving effect to the language of any instrument, regard must be had to its purpose: A mere change in title, where the owner retains the same actual interest in the property — the same insurable interest — is not within the reason of the language employed. The object of the provision containing the language was to protect the insurer against a possible change in the owner’s insurable interest in the property by a sale, transfer or conveyance, whereby the hazards of the contract into which he had entered might be increased without his consent. Hence, the generality of the language employed must be restrained to the reason and object of its use by the parties. To do otherwise would be to stick in the letter of the language employed by the parties to express their meaning, without regard to its. spirit. May on Insurance, sec. 273; Ayres v. Insurance Co., 17 Iowa, 176, 185.

Hence, so far as the second defense is concerned, the undisputed evidence shows that there was no error in the court directing a verdict for the plaintiff. The execution of the conveyance being simply a mortgage, did not affect the title nor interest of the mortgagor in the property, Barry v. Insurance Co., supra, and whether made with or without the consent of the company, is immaterial.

2. The principal question in the case arises upon the third defense — the taking’ of additional insurance without the consent of the company. There was evidence tending to show that there was no consent; so that the correctness of the ruling cannot be affirmed, unless, as a matter of law, it was immaterial. _ And this, upon a construction given to section 3643, Revised Statutes, is what is claimed. It is not claimed but that before the statute, the facts stated would have constituted a defense to any recovery on the policy, but it is claimed that under this statute, the taking of additional insuranee -without the consent of the company, 'does not avoid the policy, unless it is averred and shown that it increased the risk. The court is of a different opinion, and think that the statute has no application to the case. It reads as follows :

“Section 3643. Any person, company, or association, hereafter insuring any building or structure against loss or damage by fire or lightning, by renewal of a policy heretofore issued, or otherwise, shall cause such building or structure to be-examined by an agent of the insurer, and a full description thereof to be made, and the insurable value thereof to be fixed by such agent; in the absence of any change increasing the risk without the consent of the insurers, and also of any intentional fraud on the part of the insured, in ease of total loss, the whole amount mentioned in the policy or renewal upon which the insurer receives a premium shall be paid, and in case of a partial loss the full amount of the partial loss shall be paid; and in case there are two or more policies upon the property, each policy shall contribute to the payment of the whole or the partial loss in proportion to the amount of the insurance mentioned in each policy; but in no case shall the insurer be required to pay more than the amount mentioned in its policy.” This section has been considered by this court in a number of cases. Insurance Co. v. Leslie, 47. Ohio St., 413; Moody v. Insurance Co., 52 Ohio St., 12. It is not our purpose to question the soundness of either of these cases, when limited and applied to its facts. A careful reading of the statute will disclose, as we think, a simple purpose on the part of the legislature to limit it to such matters connected with the physical condition of .the property — its - value, structure and surroundings, as might have been discovered in the examination required to be made by the agent of the company, on an application by the owner for insurance, and not to include or extend to things that would require an examination of records, or anything else outside of the physical condition and situation of the property; certainly not, to a knowledge of things that then had no existence, and could not be divined from anything the examination required to be made by the agent, might disclose. As stated in the syllabus of Insurance Co. v. Leslie, it is “a condition or situation of the property at the time of the insurance which the examination the agent is required by the statute to make, should have reasonably discovered,” that will not defeat a recovery on the policy. In other words, no exception can be taken by the company to anything within the purview of the examination, after issuing the policy; and if any change takes ■place in the condition of the property, increasing the risk, it must be set up as a defense by the company.

The construction claimed for the statute by the defendant in error, is placed upon the generality of the words in the clause of the statute following that which directs the making of an examination by the agent of the company. This examination relates only to the physical condition of the property, and, therefore, by the ordinary rules of construction, the general languageimmediately following, should be limited to a change in such things as come within the purpose of the examination. So interpreted, they can mean no more than that, in the absence of any change in the physical condition of the property increasing the risk, the full amount of the insurance shall be paid, in case of a total loss. If it had been intended to enlarge the meaning so as to embrace other matters made material by the terms of the policy, more apt words could and, as we think, would have been used. The language would have been so introduced as not to be naturally restrained by the context to a more limited meaning-. Confining the meaning’ of the language “in the absence of any chang’eincreasing the risk” to what precedes, gives effect to all that is claimed as the purpose of the legislature in enacting’ the statute — the prevention of the evils connected with over insurance, by making companies liable for the full amount insured, after issuing a policy therefor and receiving premiums proportioned to the valuation of the property, made by their agents on an examination of the premises.

As confirming this view as to the construction of the statute, it is difficult to see how an issue of fact could be taken and tried on the question, whether the taking’ of additional insurance, in a given case, did, or did not increase the risk. The fact must generally be the same in all cases, and therefore becomes a question of law, and cannot be changed by averment. Its importance to the insurer, and the reason for the insertion of a stipulation against additional insurance without his consent, is, doubtless, based upon the generally observed fact, that the care of an owner for the preservation of his property is in direct proportion to his interest in it. Therefore, an insurer having stipulated for protection against a lessening of the owner’s interest in the property insured, without his consent, may he, in a particular case, be deprived of the benefit of the stipulation by an averment, that the plaintiff differs'from men in general, and would take the same care of his property whether his interest in it is much or little? Without stopping to inquire whether the legislature might establish such a ground of defense, the absurdity of such an issue is good reason for saying, that such an intention cannot be inferred from the mere generality of the words used in this section of the statutes. It would involve an inquiry somewhat novel in courts. The reception of evidence to prove that a man is as good as his fellows in general, is not unusual, but, to prove that he is better and more to be trusted, is seldom if ever gone into. It would be difficult, if not impossible, for a jury to return a'verdict after the most exhaustive inquiry. As a rule, sel- ■ fishness is at the bottpm of all human conduct. If you would know what a man would be likely to do in a given case, learn what it is to his interest to do. In the absence of any interest, he is likely to do nothing.

The conclusions reached do not trench upon what was decided in either of the preceding cases. In Insurance Co. v. Leslie the answer averred that the property was unoccupied at the issuing of the policy, which was contrary to the representation of the insured. The fact that it was vacant could readily have been discovered by an examination; and the court held that there was no fraud in the representation if made; for if the examination required by the statute had been made, the fact that it was not occupied would have appeared. In Moody v. Insurance Co., it was averred that the property became vacant after the issuance of the policy without the consent of the company, but the answer did not aver that it increased the risk. Occupancy in any case may be determined by an examination of the property. It is a physical fact open to view; and so within the general language of the statute when restrained to the meaning disclosed by its context. A change in this regard does not, by the statute, invalidate the policy unless it increase the risk, which must be averred, and proved if denied. This is what, as we understand it was decided on the subject before us, in the case just referred to.

Judgment reversed, and cause remanded for a new trial.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    The State ex rel. v. The Judges.

      Bill of exceptions — Time for signing — Record conclusive as to judgment.

    For the purpose of fixing the time for the allowance and signing of-a bill of exceptions, the record is conclusive as to the date of the judgment.
    (Decided October 29, 1895.)
    In Mandamus.

      Samuel E. Williamson, E. D. Potter, L. W. Hull and J. E. Ingersoll, for relator.

      Brown c& Geddes, for respondents.
   By the Court:

The petition shows that at the May term, 1894, of the circuit court of Erie county, a cause was tried therein upon its merits, a decision partly adverse to the relator being announced on the last day of the term, July 28th; a special finding of facts was requested by the relator, which its counsel were directed to prepare. By the 1st day of September said counsel had prepared such finding which was submitted to counsel for the adverse party; the entry was finally settled by two of the judges in vacation on the 1st of December, 1893, their approval was thereon indorsed and at request of such judges counsel for the relator sent the entry to the clerk with direction of the judges, to enter as of the day of the decision, July 28; relator’s counsel thereafter prepared a bill of exceptions, which on the 26th day of December, 1894, said judges refused to sign. The relator asks for a writ of mandamus to compel said judges to sign such bill:

Held, That a bill of exceptions signed on the day upon which the relator’s bill was tendered would have been unavailing under ..sections 5298, 5302, of the Revised Statutes. The record of the circuit court is conclusive of the fact'that the judgment was rendered July 28, more than sixty days before the bill of exceptions was tendered- to the judges for their signatures.

Demurrer to petition sustained and writ refused.


text:
    Morton v. The Western Union Telegraph Co.

      Negligence — Damages—Injury to feelings not cause far recovery.

    The negligent failure of a telegraph company to deliver a message does not authorize an action by him to whom it is addressed to recover for resulting injury to Ms feelings and affections when no other injury results.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Madison county.

      George B. Cannon, for plaintiff in error.

      John F. Locke, for defendant in error.
   By the Court:

The plaintiff in error brought suit to recover damages for th’e negligent failure of the defendant to deliver to him at London, Ohio, a telegram as follows:

“Henly, O., Oot. 12, 1890.

To Will Morton, London, Ohio:

‘ ‘ Mother dying. Come immediately.

“Frank Morton.”

He alleges that the sender of the telegram, who was his brother, paid to the company the usual rates; that it negligently failed to deliver the message to him, whereby he was “left in total ignorance of his mother’s illness, and was deprived of the solace and comfort of attending her in her last sickness and of the privilege of attending her funeral, which he could and would have done but for the default of the defendant, its agents and employes, and that he was injured in his feelings and affections thereby in the sum of five thousand dollars. ”

A demurrer to the petition was sustained in the court of common pleas, and that judgment was affirmed by the circuit court.

The judgment rests upon the elementary principle that mere mental pain and anxiety are too vague for legal redress where no injury is done to person, property, health or reputation. Cooley on Torts (2d ed.), p. 716. Greenl. on Ev., section 267. Numerous reported cases show that this doctrine has been followed in cases of this character by the federal courts and the courts of last resort in nearly all of the states. The wisdom of the doctrine is well illustrated by the experience of the courts that have departed from it.

Judgment affirmed.


author: By the Court.

text:
    Koch v. The State.

      Conviction before mayor under ordinance — Not bar to prosecution for same act under statute.

    A former conviction before a mayor for the violation of an ordinance is not a bar to the prosecution of an information charging- the same act as a violation of a statute.
    (Decided October 29, 1895.)
    ■ Error to the circuit court of Summit county.

      Welsh (& Satoyer, for plaintiff in error.

      Samuel G. Rogers, for defendant in error.
   By the Court.

In the probate court an information was filed against the plaintiff in error charging him with a misdemeanor, it being an offense against a statute. To this he pleaded in bar a' former conviction before the mayor of Akron for the same act, it being also a violation of an ordinance of said city. A demurrer to the plea was sustained.

The ruling is in accord with the general course of decisions. Bloomfield v. Trimble, 54 Iowa, 399; Minnesota v. Zee, 29 Minn. 445; Robbins v. The People, 95 Ill., 175; Colley’s Const. Lim., 239.

Judgment affirmed.


text:
    Harper et al. v. McKinnis, Davis & Co.

      Partnership — One member of firm may bind co-partners by contract of 'rescission.

    One member of a firm of real estate brokers may bind his co-partners by a revocation of a contract previously entered into by him with the owners of lands whereby, for a time agreed upon, such firm had acquired an exclusive right to sell such lands.
    (Decided November 12, 1895.)
    Error to the Circuit Court of Hancock county.

      Cha/í'les W. Baker, for plaintiffs in error.

      George II. Bhel/ps, for defendants in error.
   By the Court.

The defendants in error were plaintiffs in the court of common pleas, where they brought suit to recover a commission alleged to be due them as real estate brokers on the sale of lots in Harper’s addition to Findlay. They alleged that by the terms of their contract with the proprietors they were to have the exclusive right to sell the lots, and that afterwards the proprietors, in violation of said contract, sold certain of the lots to McKinnis who was a member of the firm of brokers, and to another who was not, thereby preventing them from making the sale, to their damage in the amount of the commissions agreed upon.

The proprietors, Harper and his associates, answered denying the averments of the petition, except that they were co-partners, and alleging* that when the lots were sold and conveyed McKinnis, in consideration of a reduced price, agreed that no commission should be charged by his firm.

The reply was a general denial.

. On the trial the plaintiffs offered evidence in support of the allegation of their petition.

The evidence offered by Harper and his associates showed that Harper and McKinnis represented their respective firms in making the original contract placing the lots in the hands of the brokers; that no sales had been made by them at the time of the contract of sale to McKinnis and another, that at the time of said sale it was agreed by McKinnis that, in consideration of the reduced price at which the lots were sold, no commission should be charged.

On this state of the evidence the court directed a verdict for the plaintiffs, and the judgment following such verdict was affirmed in the circuit court.

In support of the judgment it is said that to hold that Harper and his associates are discharged by the subsequent contract, would be to sanction a legal fraud perpetrated by McKinnis upon his partners,- since within the knowledge of all the parties to the sale he was devoting to his personal use a credit which was an asset of his firm. But no saie had been made and no commission was earned. There was, therefore, no credit. By this stipulation in the contract of sale, McKinnis merely terminated the engagement of the brokers as to the sale of these lots, and in doing so he exercised the same power as when he entered into the original contract. Since no claim had accrued in favor of the firm of brokers, we need not inquire as to the effect of an acquittance given by one member.

Judgment reversed and cause remanded to the court of common pleas for a new trial.


author: Shauck, J.

text:
    Kramer v. The Toledo & Ohio Central R. R. Company.

      Jurisdiction — Proceedings in probate court to appropriate lands— Section 6448, Rev. Stat. — Court need not find facts before impanelling jury — furisdiction in error of circuit court — Section 6709, Rev. Stat.

    1. Jurisdiction of a suit to compel the appropriation of lands of which a railroad company has taken possession without compensation or an agreement with the owner is conferred upon the probate court by section 6448, Rev. Stat.
    2. The facts which entitle the owner to maintain such suit, being issuable and subject to determination in the exercise of the jurisdiction so conferred, need not be found by the court before impanelling a jury.
    3. The provisions of section 6709, Rev. Stat., conferring upon the circuit court jurisdiction in error and defining the mode of its exercise, peremptorily require that court to pass upon all the errors assigned.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Crawford county.
    . The plaintiff in error filed his petition in the probate court, alleging in substance that the defendant is a corporation owning a line of railway which extends through the city of Bucyrus; that on or about February 9, 1890, it laid upon South Railroad street in said city a track for the carriage of freight from its main line to certain shops in said city, and changed the grade of the street; that the plaintiff is the owner of a tract of land lying along said street, and fronting the portion thereof so occupied and embracing the street itself subject only to the right of the public to the use of the street; that his dwelling house and other structures are upon said lands; that the defendant so took possession of said street and laid its track thereon without appropriation or compensation and without his consent; that more than ten days before the filing of said petition he served notice in writing on the company to proceed under the statute to appropriate said lands and street, and that it failed to comply with such notice; and praying that such proceedings might be taken as are authorized by law to appropriate said lands and street and to compensate him therefor. A summons issued upon the petition was duly served upon the company. The defendant answered denying the plaintiff’s title, and alleging that the title to the street was in the city of Buey rus, and that the occupation of the street for the purpose complained of was pursuant to an agreement between the city and the company. The following entry was made in the probate court: “Thiscause now coming on further to be heard, and being submitted to the court upon the evidence produced, the court find that the defendant has been duly served with process and is properly before the court, and further find that said defendant is a corporation, as averred in the petition herein, and that it has the legal right to make the appropriation prayed for in the petition, and that the same is necessary, and that the said defendant is unable to agree with the plaintiff as to the compensation to be paid for the property sought to be appropriated herein. It is therefore ordered that to assess compensation for said property herein sought to-be appropriated, a jury be impanelled according to law, and that said jury convene the 5th day of June, 1890, at 9 o’clock A. M., which time is hereby-fixed for the impanelling of the same.”

      A jury was impanelled and a trial had, resulting in a verdict for the plaintiff. A motion for a new trial was overruled, and judgment entered upon the verdict.
    Upon the trial numerous exceptions were taken by the defendant to the admission and exclusion of evidence, to the instructions given and to the refusal of the court to give instructions requested; and, grounds stated in the motion for a new trial were, that the verdict was contrary to the weight of the evidence, that the damages were excessive, and that the court was without jurisdiction. A bill of exceptions was taken containing all the evidence offered.
    A petition in error was filed in the court of common pleas, alleging as errors the several rulings to which exceptions were so taken, and the overruling of the motion for a new trial.
    A judgment of affirmance being entered in the court of common pleas, the same errors were assigned in the circuit court, where the judgment of the court of common pleas was reversed ; the portion of the entry of its judgment following such reversal being:
    “And this court proceeding to render the judgment the court of common pleas should have rendered, find there is manifest error in the record and judgment of the probate court in this, to-wit:
    “Said probate court erred in proceeding to impanel a jury and to try said case without first finding- the facts required under section 6448, Rev. Stat.j to confer jurisdiction on said probate court to impanel a jury and to try said cause.
    “And this court reverses said judgment of the probate court at the costs in error of said Henry Kramer, and sets aside the verdict therein rendered for the want of jurisdiction in said probate court to render said judgment under the facts as to jurisdiction apparent from the record of said probate court, and adjudges the costs of the proceedings in error, in common pleas and circuit court against said Henry Kramer. And this court passes upon no other of the assignments of alleged error in this case.
    “It is therefore ordered that this case be remanded to the probate court for further proceedings in accordance with law, and to the court of common pleas for execution of the judgment for costs, and that special mandates be sent to each of said courts to carry these orders into effect.”

      L. G. F&ighner and S. JR. Harris, for plaintiff in error.
    The sole ground of reversal of the case at bar in the circuit court, was that the probate court erred in proceeding to impanel a jury to try said ease without first finding the facts required under section 6448, Revised Statutes, to confer jurisdiction on said probate court to impanel a jury to try said case. Section 6448 may be examined in vain for the facts required to be first found by the probate court before proceeding to impanel a jury to confer jurisdiction upon such court.
    The defendants, by their answer, admit each and every allegation in the petition contained, with the modification that the owners of the land upon which said South Railroad street is located, deeded the same to the village of Bucyrus for street purposes.
    A failure to deny a material allegation is an admission of it and. the admission is conclusive evidence of the fact admitted. 64 Mo., 165.
    The answer shall contain a general or specific denial of each material allegation of the petition controverted by the defendant. Revised Statutes, section 5070. Every material allegation of the petition not controverted by the answer shall for the purpose of the action be taken as true. Revised Statutes, section 5081.
    The answer of defendant setting forth that plaintiff-did not own any interest in the street aside from the public is wholly frivolous. The admission that plaintiff is an abutting lot owner concedes to plaintiff, in the language of the supreme court, a peculiar interest in the street which neither the local nor general public can pretend to claim a private right in the nature of an incorporeal hereditament legally attached to his contiguous grounds and his erections thereon, an incidental title to certain facilities and franchises assured to him by contract and by law and without which his property would be of little value. This easement appendant to the lot, unlike any right of. one lot owner in the lot of another, is as much property as the lot itself. Street Railway v. Cumminsville, 14 Ohio St., 547; Railway Company v. Lawrence, 38 Ohio St., 41; Crawford v. Village of Delaware, 7 Ohio St., 459.
    It is immaterial whether the fee is vested in the city or in the abutting owners. The city held the property for the purposes of streets only, and the defendant could claim from the city only such rights in the street as the city held. The grant made by the city to the defendant of the right to use the street for railroad purposes is not a bar to plaintiff’s action. The right of access to a street is an individual right and not a public right and the land owner in claiming damages for being deprived of it, is complaining not of a public but a private nuisance. The state consent would not empower a railroad company to cut off an adjacent land owner from convenient access to the street. 18 Ohio St., 123; Cooley on Torts, 616; 14 Ohio St., 623; 38 Ohio St., 45; 40 Ohio St., 496; 101 N. Y., 98; 1 O. O. C., 558.
    The probate judge was authorized by section 6421 to proceed to impanel a jury to try said case, by first finding- the following facts required under section6420, Revised Statutes, to confer jurisdiction on said probate court to impanel a jury to try said case, to wit:
    1. The existence of the corporation.
    2. Its right to make the appropriation.
    3. Its inability to agree with' the owner, and
    4. The necessity for the appropriation.
    These are the jurisdictional questions to be first found which authorize -the probate court to proceed to impanel a jury to try said case and to confer jurisdiction.
    The supreme court has held that the probate courts of this state are in the fullest sense courts of record. They belong to the class whose records import absolute verity, that are competent to decide on their own jurisdiction and to exercise it to final judgment, without setting forth the facts and evidence on which it is rendered. Shrover v. Richmond & Stokely, 16 Ohio St., 455; Heckman v. Adams, 50 Ohio St.
    It is provided in section '6437 that either party may file a petition in error in the court of common pleas, of the proper county, within thirty days from therendition of the final judgment in the probate court and the proceedings in error shall be conducted as in civil actions. King v. Penn, 43 Ohio St., 57; Ludwig v. Hills, 46 Ohio St., 373; Railway Co. v. Wick, 35 Ohio St., 247.

      A. W. Scott and Finley <& Bennett, for defendant in error.
    The petition provided for under section 6448 is not an ordinary petition under the Code, but is a petition provided for by a special section of the statute, which requires that it must contain the following facts:
    1. The fact of such use or occupation by the corporation.
    2. That the corporation has no right, legal or equitable in the premises.
    3. That the notice provided for, has been duly served.
    4. That the time of limitation under the notice has elapsed.
    5. That the land has not been appropriated and paid for.
    6. That the land is not held by any agreement in writing with the owner thereof.
    7. That the corporation has no right, legal or equitable, thereto.
    8. That plaintiff is the owner of the land sought to be appropriated.
    Are the above facts jurisdictional, and can a court proceed unless those facts exist, and is it necessary for the probate court to find them to exist before it can proceed to take jurisdiction and impanel a jury? We think the answer must be- in the affirmative, and' the circuit court likewise thought so and answered in the affirmative.
    It is clear to us that under sections 6420 and 6421 of the Revised Statutes, and under 6448 and 6449, before the probate judge has authority to order a jury, he must first determine the foregoing jurisdictional questions, and that unless it is done and the record must speak whether it is done or not, he had no jurisdiction to impanel a jury, and that all proceedings in the absence of such finding and determination, including the verdict of the jury, and judgment of the court, are wholly without jurisdiction and void.
    By examination of the record of the probate court it will be seen that none of the foregoing jurisdictional facts were found by the court. Spoors v. Coen, 44 Ohio St., 497.
    The street having been occupied and taken by the defendant corporation under and by virtue of an agreement with the city council of Bucyrus, if the city owned the fee of land as the answer alleges it did, the plaintiff would have no right of action to have it appropriated, because two facts must exist as a condition precedent to his right to have an appropriation, viz.:
    1. That he is the owner of the fee.
    2. And that possession is not held by any agreement in writing with the owner thereof.
    But if the city did not own the fee, but granted the right to lay down the track by virtue of its control of the streets of the city, then plaintiff could elect either to have his interest in the street appropriated, or bring an action under section 3283 to recover damages to the adjacent lot, or rather abutting lot; but in an appropriation proceeding he could not have both. Railroad Co. v. Robbins, 35 Ohio St., 531; Flichman v. Railway Co., Superior Court of Cincinnatti, page 302 of Law Bulletin, No. 19, 1892.
   Shauck, J.

Although the land of which the company took possession is a public highway, its occupation for the purposes alleged in the petition, imposed upon it an additional servitude for which the plaintiff, as owner of the fee, is entitled to compensation; and his right in that regard, the company having taken possession without appropriation and without the owner’s consent, may be enforced under the provisions of section 6448, Revised Statutes. Railroad Co. v. Williams, 35 Ohio St., 168; Rodlroad Co. v. O'Harra, 48 Ohio St., 343. The petition fully conforms to that section, and alleges the service of the preliminary notice therein required. It, therefore, states a cause of action.

The principal contention of counsel for the defendant in error is that the probate court was without jurisdiction to impanel a jury for the assessment of compensation and to render a judgment upon the verdict because it did not first find all the facts which under section 6448 constitute the plaintiff’s cause of action. The finding which the court made is conformable to the provisions of section 6420, which relates to the proceedings to appropriate voluntarily instituted by the company before it takes possession of property. In proceedings of that character the statute contemplates that the company shall be found to be vested with the power to exercise the right of eminent domain, and that the condition to its exercise shall be first found. The provision is in favor of the property ' owner. There is no such requirement in regard . to proceedings under section 6448, nor are there analogous reasons for such requirement. In cases of this character the probate court derives its jurisdiction from the unconditional terms of the statute, which constitutes it a court with full jurisdiction for the purposes indicated. The ■ facts which counsel insist the court should have .found as a condition to its jurisdiction, are issuable facts to be determined in the exercise of the jurisdiction which the statute confers.

It is true that in Railroad Co. v. O'Harra, the probate court did find the facts which under section 6448 constitute the cause of action, but they were found after issue joined, ‘ no jury being demanded.” Undoubtedly the issues joined are triable to a jury, and the contention of counsel is, in effect, that they should be tried twice. We do not find in the statute or the reason of the law, or in the cases cited any support for the conclusion reached by the circuit court.

Counsel for the plaintiff in error further contend that the circuit court erred in refusing to pass upon all the errors assigned in the petition filed in that court. Section 6709, Revised Statutes, relates exclusively to the jurisdiction of the circuit court in error and to the manner of its exercise. It provides, that “all errors assigned in the petition in error shall be passed upon by the court, and in every case where a judgment or order is reversed and remanded for a new trial or hearing, the circuit court shall, in its mandate to the court below, state the error or errors found in the record upon which the judgment of reversal is based.” The requirement of this section could not be made clearer by comment. When the record permits the presumption, as it always should, that the circuit court has complied with the section, an inference of much importance, not only in this court, but in courts inferior to the circuit court, arises. That inference is that all assignments of error in the circuit court, except those which are stated as the basis of a judgment of reversal, are adjudged to be not well taken.

Important rights of litigants are secured by this provision. Practically, the circuit court is the court of last resort for the determination of the weight of the evidence. If it should fail to pass upon an assignment of error founded upon that ground, and reverse upon other grounds, a most important right of the plaintiff in that court would be put in peril. For, if this court upon a petition in error, should reach a different conclusion upon the questions on which the circuit court bases its judgment of reversal, it would be its duty to reverse the judgment of the circuit court and affirm that of the common pleas; and it would result that the plaintiff in error there would be conclusively denied the right, clearly conferred by law, tb have the judgment of the circuit court upon the weight of the evidence.

The subject of a suit in error is the judgment whose reversal is sought. However numerous may be the grounds upon which the validity of the judgment is challenged by the assignments of error, the suit is single and entire. This statute wisely protects both parties from the evils of expense and delay that would result from having the suit tried piecemeal. If the action of the circuit court in this case is to be approved, there may in every error ease brought there be as many judgments as there are assignments of error, and every judgment so rendered be the subject of a separate petition in error here. The performance of the duty here enjoined would not only secure important rights of both parties, but afford an attractive example of judicial obedience to a statute about whose meaning there is no difference of opinion.

We cannot infer that the circuit court conformed to the requirement of the statute in this case, since its record affirmatively shows that it did not. It is true that if the assignments of error not passed upon are not well taken, the plaintiff in error should now recover a final judgment. One of those assignments, however, requires a determination of the weight of the evidence, which, as is well known, this court does not consider. These assignments were not waived, and, so far as the record discloses, the action of the court in refusing to pass upon them was of its own motion. Due regard for the right of the company to have a determination of all the errors assigned in its petition in the circuit court requires that, upon a reversal of its judgment for the error first noticed, the cause be remanded to that court with instruction to pass upon all the errors assigned.

Judgment accordingly.


author:
Bradbury, J. Spear, J.,
      Shauck, J., Burket, J.,

text:
    City of Toledo v. Sheill. Same v. Eversman. Same v. Beckler.

      Corner lots — Presumption as to frontage — Erection of dwelling or business house on lot — Effect of style of architecture and use of building — Side entrances.

    1. Where the boundary lines of a corner lot extend along one of its two abutting streets a materially greater distance than along the other, a presumption arises that it fronts upon the latter street.
    2. Where the shape and dimensions of a corner lot raise a presumption that it fronts on a particular street while vacant, such presumption continues after it has been improved, unless rebutted by the style and character of the improvements.
    3. Where a single business house is erected on a corner lot, .the front of which, according to its plan of construction, or style of architecture, accords with the presumed front of the lot, while the latter was vacant, such front is not changed, although the building is provided with doors and halls that permit an extensive use of the other, or lengthwise, street •and afterwards such use is freely made by the occupants of the building.
    4. Where a dwelling house is erected on a corner lot, the front of which, according to its plan of construction or style of architecture corresponds with that of the lot, when the latter was vacant, the original front is not changed, although the building is provided with entrances opening on the lengthwise street, that are extensive^ used by its occupants and appurtenant structures erected that are accessible only from the latter street. Such use of the side street is incidental only to the occupation of the dwelling house.
    5. Where both a dwelling house and a business house are ercted separately on a corner lot, the former fronting on the breadthwise street, and the latter on the lengthwise street, so much of the lot as the latter building occupies, or is clearly used as appurtenant to it, should be held to front on the street which it face's.
    (Decided November 26, 1895.)
    ERROR to the Circuit Court of Lucas county.

      Charles F. Watts, Horace A. Merill and Julian II. Tyler, for plaintiff in error.

      Geo. P. Kirby, and Chas. II. Lemmon, for defendants i‘n error.
   The facts will be found in the opinion.

Bradbury, J.

The city of Toledo, in the course of proceedings instituted for the improvements of certain of its streets, sought to assess the “cost and expense” incurred for such improvements upon the abutting property ‘ ‘ by the foot front of the property bounding and abutting upon the improvement,” pursuant to the provisions of section 2264, Revised Statutes, passed March 5, 1890 (87 Ohio Laws, 43). This court in the case of Haviland v. The City of Columbus, 50 Ohio St., 471, was required to construe this language, and it there held that where a municipal corporation sought to assess the cost and expense of improving a street upon the abutting property by the front foot, regard must be had for the real front, which was a matter of fact depending on the manner in which it had been laid out, built upon, occupied and used by the owner, and where a lot abuts lengthwise on an improvement, but fronts breadthwise on another street, it should be assessed for such improvement to the extent of such lengthwise frontage only. And in the case of Sandrook v. Columbus et til., 51 Ohio st., 317, this court held that in the case of an unimproved, lot lying on a corner of two streets and extending along one of them 371 feet and along the other 150 feet, it should be deemed to front on the former street.

The city of Toledo, in the cases under consideration. reargues these questions, especially those in the Haviland ease, and asks their reconsideration. The reasons advanced by counsel for the city are not without force, but do not convince us that either of those two causes were erroneously decided, and we reaffirm the doctrine they announce.

Each of the three cases under consideration, however, has special features that distinguish it from both those cases. While we do not hold that a corner lot upon which a single structure stands, or a single main structure with appropriate or incidental minor ones appurtenant to it, may not have two fronts — one on each street — yet that can only occur under special or peculiar circumstances, which we do not attempt to forecast. The question of frontage should be determined according to the ordinary acceptation of that term. There is nothing technical or abstruse connected with the subject. The common knowledge of mankind is usually amply sufficient to determine the fact whenever a controversy arises respecting the front of a lot. Where a lot is unimproved, a glance at the plat is generally enough; if the lot is rectangular, with two of its parallel lines distinctly longer than the other two, the usual form of town and city lots, the mind at once recognizes it as fronting on the street which runs along its shorter line, or end. And although the lot may not be rectangular, yet if its length along- one street is clearly and , considerably greater than along the other, the same recognition occurs. Doubtless a lot may have such shape that the question of its frontage might be of difficult solution, but such cases are exceptional, and should not affect the general question.

In the case of a corner lot in the usual form, therefore, a natural inference arises that its narrow side, or end, is its front, because that accords with our common knowledge and experience of such matters. This constitutes a presumption of fact. Should the lot be improved, this presumption continues, unless there is something in the nature or character of the improvement to rebut it. Doubtless the plan or style of the structure, in connection with the uses for which it was designed, will in many instances overcome this presumption, and in every instance becomes a material factor in determining the question of frontage. The fact, however, that the structure, whether designed for a dwelling house or a place of business, is so arranged that the side street, so called, can be used for the convenience of the , occupants of the building, and is in fact, extensively used, are not enough to establish a change of front. In the case of dwelling houses, especially, it is within the common knowledge of every one, that, in many instances, its occupants habitually use what they call and understand to be a side entrance, without any notion that such use, in contemplation of law, changed the front of the structure, and consequently, the front of the lot upon which it stands. There can be no change of the front of a town or city lot in law, unless there is a change in fact made. The actual and the legal frontage must be identical.

Where a single building has been erected on a corner lot, the style of architecture alone, or that together with the purpose for which it was designed, and the arrangement of the grounds and outhouses, may indicate that its real front is towards the side street, so called. In such ease, if the character of the improvements satisfactorily indicates that the entire lot is to be used with reference to or in connection with such improvements, a fair inference would arise that the entire frontage was changed. But if the character of the building or other improvements, fronting on the side street, discloses that only a portion of the entire lot was intended to be used as appurtenant thereto, then the frontage of that part only which was to be so used would be changed; unless where such structure being placed on the original front end, would in changing the front of that part of the lot necessarily change the frontage of all that part of the lot which might lie between the structure and the rear end thereof. And, doubtless, wherever a structure fronting ok the side street, appropriated a strip through to the other side of the lot, all the lot lying between the strip so appropriated and its rear end would have its frontage changed.

In applying these principles to the several cases under consideration, it is necessary to ascertain the form of the several lots and the character of the improvements made on each, and existing at the time the city began proceedings to improve the respective streets upon which the lots were claimed to abut.

In the case of Toledo v. William Sheill, the city contended that the defendant’s lot abutted on Erie street as well as on Stickney avenue, and attempted to assess the lot for its full length along the former street, to ¡Day the cost and expense of improving that street. It is a rectangular corner lot extending along Erie street one hundred and twenty feet, and along Stickney avenue twenty-seven and one-half feet; upon it stands a dwelling house, so constructed that its front was consistent with that of the lot when vacant. Another building fronting sixteen feet on Erie street and extending back twenty-seven feet, then stood on said lot, the front half of which its owner, the defendant, occupied for a shoe shop. This building stands upon the rear end of the lot, where the lot is considered with reference to its front on Stickney avenue. According to the principles which we hold should determine the fact of frontage, the lot in question, if vacant, would front on Stickney avenue, and as the style of the dwelling house is as consistent with the continuance of that frontage, its erection did not effect a change in that respect. The other building, however, clearly and distinctly fronted on Erie street, and its front end, or room was designed for and used as a workshop for the owner ; a use nowise appurtenant to the dwelling house, but, on'the contrary, was independent thereof. The style of this building and the chief purpose for which it seems to have been designed indicate a fronting on Erie street. What in relation to this building is unmistakably a front door, opens immediately upon Erie street, and affords the only direct entrance to the shoe shop. This latter building stands on the rear end of the lot when viewed from Stickney avenue, and extends back nearly its entire breadth, so that the building substantially covers the rear sixteen feet of the lot. To that extent the lot should be held to front on Erie street, and the assessment made accordingly.

In the case of Toledo, v. Eversman, the agreed statement of facts shows that the real estate in the petition described, being lot number six hundred and ten (610) in Oliver’s addition to the city of Toledo, Lucas county, Ohio, as laid out and platted, abuts fifty (50) feet upon Broadway street, and one hundred and fifty (150) feet upon Logan street, and is situate on the southwesterly corner of said streets.

Broadway street runs northeasterly and southwesterly, and is intersected at right angles by Logan street.

The entire lot is covered by a brick building, one hundred and twenty (120) feet of which, extending northwesterly from Broadway street, is three stories in height, and the northwesterly thirty (30) feet thereof is two stories in height. This building is used by the plaintiff for the purpose of carrying-on the business of dealing in hardware and stoves, and of manufacturing heating furnaces.

The first story of the three-story part is divided into two store rooms, which extend the entire length of said part; the store rooms are connected by two arch-ways in the brick partition extending between the same.

In that part of each of the store rooms abutting upon Broadway street there are large double doors which are used for the purpose of ingress and egress from and to said Broadway street, and on each side of said doors are large windows which are used for the purpose of displaying’ the goods and wares of the plaintiff, and for the purpose such windows are generally used.

In that part of the three-story building abutting upon Logan street there is no door except at the northeasterly end thereof, which is used for the purposes of ingress and egress from and to said Logan street.

Adjacent to this door and in the two-story part, is a doorway twelve feet in width leading into a hallway, and connected with stairs by means of which access is had to the second and third floors. To this hall there is access from the store rooms above mentioned.

The two-story portion of the building is used by the plaintiff as a barn in which is kept his horses and wagons, used by him in carrying on his business and for no other purpose, and from this opens onto Logan street a door wide enough to admit the passage of a horse and wagon. At the northwesterly end of said store rooms there is a large double door about five feet in width through which access is obtained to the two-story part. Westerly of this doorway, and at the northwesterly end of said store rooms, there is a window.

The entire two-story building is used by the plaintiff in carrying’ on his business, and for no other purpose. The third floor of the building is used as a public hall, and access to the hallway above mentioned is had both from the Logan street entrance and from the store rooms above mentioned. .

At the corner of Broadway and Logan streets there is a window extending upon Logan street about two and one-half feet and upon Broadway street about two and one-half feet. On the second floor of both buildings, and upon the third floor of said building, there are windows upon both the Broadway and Logan street sides. •

The record contains a photograph of the building, showing that, according to its style of architecture and plan of construction, it fronted on Broadway, but was provided with openings admitting of the free use of Logan street; and the evidence given by the owner himself shows that the Logan street entrances were freely used in connection with his business. One of those entrances was the chief means of ingress and egress to and from a public hall in the third story. Another of them seems to have been the only entrance to that part of the building used for a barn.

The circuit court found that the building and consequently the lot fronted on Broadway alone. This holding was correct. The building wah an entirety — a single structure designed for conducting a particular business — and of such form and style, that according to the common understanding and notion respecting the subject it fronted on Broadway. One side extended along Logan street, and naturally the use of that street would be both convenient and advantageous to its occupants. In view of this situation the owner in the plan of construction provided facilities for such uses, and afterwards those facilities were used at their pleasure by the owner, his employees and customers; this use, however, neither changed the front of the building, nor gave it a double front; it was a use incidental, merely to a structure thus favorabty situated whose plan of construction gave it a recognized front- in another direction. Where a building has been constructed after a plan that indicates unmistakably or even with reasonable certainty its front, the circumstances that facilities for side entrances have been provided and are afterwards used by its occupants, and those who for social or business purposes, visit the house, can operate only slightly, if at all, to effect a change in this particular.

In the case of Toledo v. Annie Beckler, an agreed statement of the facts discloses that: “The real estate in the petition described, being’ lot number two hundred and six (206), in Knower’s addition to the city of Toledo, Lucas county, Ohio, as platted and laid out, abuts forty (40) feet upon Knower street, and one hundred and six and 26-100(106.26) feet upon Maumee avenue. Knower street extends east and west, intersecting Maumee avenue at right angles, and said lot number two hundred and six is (206) situate upon the northwest corner of said streets. The north end of said lot abuts forty (40) feet upon an alley.

“May 5, 1890, there was, and continuously ever since said time, there has been upon said lot a two-story frame dwelling, with a one-story addition which was at said time, and continuously ever since has been, used and occupied by said plaintiff as her residence.

“There was not, at said time, nor is there now any other building upon said lot, except a small shed, which was and is located upon the line of said alley, and was and is used for storing fuel.

“The narrow part of the two-story, or main part of the house, faces Knower street, and the long side thereof faces Maumee avenue. In the two-story part facing Knower street, there was and is a door from which extends a walk leading to the street; in the two-story part of the house facng Maumee avenue there is no opening except windows; on the northerly side of the two-story part there was and is a one-story addition, which is not as wide as the main part of the house; in the side of this addition, facing Maumee avenue, there is a door opening onto a porch, which extends along this side of the addition, and there was and is a walk leading from said Maumee avenue to said porch, and on a line with said door, there was and is a door opening from the sitting’ room, in the main part, onto this porch; the first floor of the two-story part is divided into three rooms and a hallway; the door facing Knower street opens into a hallway; the hallway has therein a stairway and two doors, the one leading to the sitting’ room, and the other into what is used as a parlor; the room next to Knower street is used as a parlor or front room, and has windows on the Knower street and Maumee avenue sides; behind the parlor is an ordinary family sitting room, with a bedroom off it; the one-story addition constitutes the dining room and kitchen, from which is a door leading onto the porch above described, and a door in the north end, opening into a small woodshed.

“There was not, at the time aforesaid, and has not been, any fence around this lot. The gables of the two-story part are upon the north and south ends thereof; the gable of the one-story part is on the north end thereof, and the roofs on both parts of the building slope east and west.

“The part of the house facing Knower street is what is known as the front elevation, and there is no other front elevation thereto.

“It was further admitted by the plaintiff that if she were called upon to testify, she would testify that the entrances to her house from Knower street and from Maumee avenue were both used for the purposes of ingress and egress to and from said house, but that the family most frequently used the entrance on Maumee avenue for said purpose. ”

In addition to this agreed statement, a photograph of the premises was introduced in evidence which plainly shows that the dwelling house, according to the plan of its construction, should be held to front toward Knower street. The circuit court held that the premises fronted on Knower street. We think this holding is correct. According to the principles we hold should be applied to determine the question of frontage, the lot, if vacant, would front on that street. A dwelling house stands on the lot, the front of which, while it is not indicated with entire clearness, may fairly be held to face in the game direction. It has an entrance from Maumee avenue which its occupants and many others having occasion to visit them find more convenient than the entrance from Knower street, and on that account use it more frequently than they use the latter entrance. This use, however, as we have seen, is entitled to very little weight upon1-the question of frontage in any case, and especially respecting the front of a dwelling house, where the use may vary with the ea-price of its occupants, or change entirely with a change of tenants.

Judgment accordingly.

Spear, J.,

(concurring).

I assent to the judgments rendered in these cases, and others of like kind decided at the same time involving the same question, on the principle of stare decisis. The judgment in the Haviland case pronounced June 20, 1893, was rendered by a divided court. It received, at the time of its rendition, neither the assent of my judgment nor my vote, although no formal dissent was entered of record. April 24, 1894, the question was again presented to this court in Sandrock v. Columbus, (51 Ohio St., 317), and the same principle announced, resulting in a reversal of the judgment below.

Time and space are not. taken here to give a statement of the ground of dissent of the minority, for, as it seems to me, such statement would be regarded, using common parlance, as a “back numbereven though it might be possible to demonstrate that some other construction of the statute would have been sounder, more scientific, or more philosophical, or more scholarly. The law was settled long ago; the rule given, admittedly an equitable one, was acquiesced in by the people at large, and by most of the courts of the state, and numerous controversies, in Columbus and other cities, were adjusted and improvements made in consonance with the rule given, on the understanding that the question was settled and ended; and it would seem that it should be so regarded. Stare decisis, et non quieta movere.

Shauck, J.,

(dissenting).

Attention is due to the terms of the statute conferring upon municipalities the power of assessment which has been exercised in these cases. It provides that “where an improvement is made of an existing street, alley or other public highway, * * the costs and expenses shall be assessed by the council on the abutting * * lots and lands in the corporation * * by the foot front of the property bounding and abutting on the improvement. ’ ’ Section 2264, Revised Statutes. The assessment contemplated is not upon buildings, but upon lots and lands. It extends to all abutting lots, whether they be used and occupied or vacant. In the case of lots that are built upon, the power is not limited by architectural elevations nor by modes of ingress and egress. To make lots and lands subject to the assessment it is necessary only that they bound and abut on the improvement.

The relation of these words of the statute shows plainly enough, that the general assembly used them in their popular sense, regarding “bounding ” and “abutting-” as synonyms, and “front” as indicating the extent to which a lot is bounded by the highway for whose -improvement the assessment is made. And it is equally clear that the general assembly shared in the popular understanding that a corner lot fronts on both the streets by which it is bounded. That this is the sense in which these words are used is indicated not only by the provision quoted, but by many others relating to the control and improvements of municipal highways, suchas the requirements as to the frontage owned by those who sign petitions for the improvements, consents to the granting of franchises in streets, and the provisions relating to the cleaning of streets and the construction and maintenance of sidewalks and sewers. It is provided (Rev. Stat., sec. 2333) that no tax shall be imposed for the construction of a sidewalk upon property whose owners “have contracted and maintained sidewalks in front of such property.” Will it be said that the owner of a corner lot is exempt from the construction of a walk upon one front of his lot because he has constructed and maintained a walk upon the other? If it be answered that the use of the plural, “sidewalks,” prevents the application to that section of the views here expressed by the majority, the reply is that in the view of the legislature it requires a plurality of walks to occupy the fronts of corner lots.

The provisions of secs. 2379 and 2383, inclusive, are more than sug’gestive. They authorize municipalities to assess the expense of constructing sewers “upon the, feet front of the lots and lands, by or through which” they pass. Certainly a lot cannot front upon a sewer, as the word “front” is defined by the majority in these cases. It is provided in section 2383 that “the council may exempt from assessment, such portion of the frontage of any lot .having a greater frontage than its average depth, and so much of anj frontage of corner lots, as to it may seem equitable, and charge the deficiency caused by such exemption on the whole frontage tax pro rata.” In view of this provision, the' meaning of these words is not a matter of inference, but the subject of express declaration. Section 2269 prescribes rules for making assessments. As amended March 27, 1884, it contained the following provision: “And if, in making a special assessment by the foot front, there is land bounding or abutting upon the improvement not subdivided into lots, or if there be lots numbered and recorded, boimding or abutting on . said improvement and lying lengthwise on said improvement, the council shall fix in like manner the front of such land to the usual depth of lots, so that it will be a fair average of the depths of lots in the neighborhood, which shall be subject to such assessment. ” Before the assessments whose validity is now considered (March 11, 1887), the section was amended by omitting the italicised portion thereof. That provision was inserted in the act of 1884, so that corner lots might not be assessed upon the whole of their long frontage. It was omitted from the act of 1887, so that they should thereafter be assessed upon such entire frontage. That this is the true legislative meaning of the terms under consideration, is scarcely less manifest in other provisions of the statute.

The use of the terms in this sense is not only in conformity with popular usage, but it is technically accurate. To front, is to be in a confronting or opposed position; to face toward; to meet.

A somewhat extended examination seems to warrant the observation that there is but one exception to the numerous cases in which, either by express holding or by clear implication, to front and to abut have been adjudged to be equivalent phrases within the meaning of assessment acts. The act under which extensive street improvements were undertaken in the city of Columbus (O. L. 72, p. 153), was held to be unconstitutional; but it was also held that those who promoted the improvement were estopped to assert its invalidity, and that as to them the act should be enforced according to its terms. Section 24 of the act provided that the city council should “not have the right to authorize any improvement unless the owners of two-thirds of the feet front of the property abutting on any street or avenue to be improved shall petition the city council for the privileges of this act. ” In City of Columbus v. Sohl, 44 Ohio St., 479, this court held that the petition presented to the council in that case was sufficient, although the record showed that to reach that result it was necessary to count the lengthwise frontage of all the petitioners, even of those whose lots were vacant. The 14th section of the act provided that the cost of the improvement should be ‘ ‘ assessed equally per front foot upon the property fronting or abutting on the improvement,” and this court adjudged that assessments upon the entire long frontage of corner lots were valid even though they exceeded the value of the lots after the improvement was made. The provisions now under consideration (section 2264), were before this court in Lima v. Cemetery Association; 42 Ohio St., 128. It was held that a cemetery fronts upon an alley. The conclusion is based upon the obvious consideration that all lands front all the highways by which they are bounded. How that case could have afforded any other reason for the conclusion reached, does not appear.

In Cincinnati v. Seasongood, 46 Ohio St., 296, this court determined a question arising out of the amendment of section 2269 above shown. The question was whether the assessment for the improvement of a street upon which a corner lot fronts lengthwise is valid for the entire length of that frontage as provided in the act of March 1.1, 1887, or whether it should be restricted as required by the act of March 27, 1884. The Court reached the conclusion that the extent to which the property could be assessed was determined by the statute in force at the time of the passage of the improvement ordinance. The contention of counsel and the decision of the court are vanity Unless, under the act of 1887, the assessments now before us are valid.

The report by Sayler, J., in Shehan v. The City of Cincinnati, 25 W. L. B., 212, shows that in that case the superior court, taking the same view of the statute and of Beasongood v. Cincinnati, as it has taken in rendering the judgments now under review (considered with these cases and reversed), adjudged that the assessment was valid upon the entire long frontage of a corner lot. At about the same time that court, under the same statute, rendered a similar judgment in Elder v. Cincinnati. The judgments whichit then rendered wereaffirmed by this court May 28, 1892. 27 W. L. B., 375.

In the City of Des Moines v. Dorr, 31 Iowa, 89, the validity of an assessment upon the entire long frontage of a corner lot was upheld. The court disposed of the point now considered as follows: “These premises are. situated at the intersection of Sixth and Walnut streets, being1 a corner lot with twenty-two feet front on the latter' street and one hundred and thirty feet front on the former. It will thus be seen that the lot has two fronts, as every corner lot necessarily has, because its face is opposite to and fronts on two different streets. ’ ’

The same conclusion was reached in Morrison v. Hershire, 32 Iowa, 271, the court saying: “Someof them are corner lots, and are so situated that the streets bounding each one of them upon its end and side are improved. These lots, in fact, front on two streets — have a double frontage, and are, therefore, properly so assessed.”

The same conclusion was reached in Lawrence v. Killam, 11 Kan., 499, under a statute providing that “the assessments shall be made on all lots and pieces of ground abutting on the improvement according to the foot front thereof. ’ ’

In People ex rel. Taber v. Adams, 18 N. Y. Supp., 443, the frontage of a corner lot was thus determined: “A corner lot faces or fronts on two streets. It has a frontage on both streets, although the house built upon it may have its principal door for egress and ingress facing only one street.”

It would exhaust patience to cite all the cases in which this view of the words and phrases now under consideration has been taken. A few more of them are Bonsall v. Lebanon, 19 Ohio, 418; Springfield v. Green, 120 Ill., 274; Wilbur v. Springfield, 123 Ill., 400; Scott County v. Hinds, 50 Minn., 204; Michener v. Philadelphia, 118 Pa. St., 535; Joyes v. Shadburn, 13 S. W. R., 361; Weeks v. Milwaukee 10 Wis., 258; Tracy v. Chicago, 24 Ill., 500; Bacon v. The Mayor of Savannah, 91 Ga., 500. It is apparent that the legal meaning of these terms had been judicially settled before they were used in the statute before us. Here is no occasion for the application or discussion of rules of interpretation supposed to be of an equitable nature. The constitutional validity of the statute is confessed and the meaningof its provisions is entirely clear. Its enforcement according to its obvious intent is required by that subordination to the law which is due from all courts and especially from those that are not otherwise subordinate. Nor do the conclusions reached by. the majority in these cases leave much occasion for pointing out the confusion that is to ensue. These observations, perhaps, sufficiently intimate the opinion that the judgments of the superior court of Cincinnati should be affirmed, those of the circuit court of Lucas county reversed; and that Haviland v. Columbus, should be overruled.

Burket, J.,

(dissenting).

I base my dissent in all of these cases upon the following considerations;

These cases, with others, were brought here for the purpose of having this court again consider the principles of the Haviland case, and if possible overrule that case, and therefore I feel at liberty to here consider the question anew.

In that case I contended, and I now contend, that the matter of assessments upon corner lots for street improvements is governed alone by the constitution and statutes on that subject. That there is no statute warranting the rule of the Haviland case, and that corner lots are liable to be assessed by the foot front on their entire length and breadth, subject to the restriction that the assessment can not exceed the amount of the special benefit, as was held in the Chamberlain case, 34 Ohio St., 551, and also subject to the restriction of section 2283, Revised Statutes, as to double assessments within a period of five years, and subject further to the twenty-five per centum limitation, when that limitation is applicable, subject still further to such other limitations in special cases as are provided by statute.

The majority having again affirmed the principles of the Haviland case, the question must be regarded as settled, and to be followed by this, as well as the lower courts, unless changed by the general assembly as to future assessments.