author: Price, J.

text:
    Burns v. Tarbox, Sheriff.

      Affidavit charging violation of Section 6984a, Revised Statutes— Defendant accused of committing act in certain locality — Seeks discharge under habeas corpus — On ground act not committed where specified — Evidence, not competent to work discharge — • ■Criminal law — Habeas corpus proceedings.

    An affidavit filed with the mayor of the city of Xenia, Greene county, who has criminal jurisdiction, charged B. with a violation of Section 6984a, Revised Statutes, -in that he unlawfully, wilfully and negligently failed to furnish necessary and proper food, clothing and shelter for certain of his minor children under sixteen years of age. The affidavit is sufficient in' form and substance and alleges that the accused committed said offense in said city and in Greene county between the first day of January, 1906, and the twenty-first day of June of the same year. The mayor issued a warrant on said affidavit, which ■ warrant is sufficient in form and substance, directed to the sheriff of Greene county, commanding the arrest of B., and he was arrested and taken into custody in -Cincinnati, Hamilton . county, in pursuance of said warrant. Thereupon B. instituted proceedings in habeas corpus before one of the judges of the court of common pleas of .Hamilton county, and on hearing .of the petition and the return thereto, as the only ground for discharge from custody, B. offered evidence to prove that he had not been in Xenia or Greene county for many years preceding his. arrest, and that he has been a resident of Cincinnati, Hamilton county, for a great many years, and that at no time during the period laid in the affidavit was he in Xenia or Greene ' county, or a resident thereof; and further, that if he committed the crime charged, it was committed in Cincinnati, Hamilton county, and not in Greene county. The judge refused to hear or consider said evidence, dismissed the petition and remanded the prisoner to the custody of the sheriff of Greene county.

      Held: The evidence offered was not competent to work the discharge of B. on habeas corpus, the same being competent and appropriate as a part of his defenses to the charge before said mayor.
    (No. 10412
    Decided June 25, 1907.)
    Error to the_ Circuit Court of Hamilton County.

      On the 24th day of June, 1906, the plaintiff in error petitioned the Honorable John A. Caldwell, a judge of the court of common pleas of Hamilton county, for a writ of habeas corpus to be issued to the sheriff of Hamilton county, and as a ground for the issuing of the writ Burns alleged that one Frank Tarbox, claiming to be the sheriff of Greene county, Ohio, was unlawfully holding and depriving him of his liberty. Judge Caldwell allowed the writ to issue returnable June 29, 1906, at ten A. M., before Hon. James B. Swing, a judge of said court of common pleas, or in case of his absence or disability, before some other judge of said court. The sheriff of Hamilton county,, in pursuance of the writ, took said Burns before Judge' Swing, where the cause of his detention by Tarbox was inquired into. The case was heard, the petition dismissed and Burns was remanded to the custody of the sheriff of Greene county. Motion for new trial was overruled, a bill of exceptions allowed and error was prosecuted by Burns in the circuit court. The latter court affirmed the judgment of the court of common pleas. Further history of the case appears in the opinion. The case is here on error to reverse both judgments.

      Mr. C. W. Baker and Mr. Thorne Baker, for plaintiff in error,
    cited and commented upon the following authorities:

      In re application of George et al., 5 C. C., 207; Brown on Jurisdiction, 2d Ed., 387, Sec. 109; Church on Habeas Corpus, 2d Ed., Sec. 222; State v. Dangler, 74 Ohio St., 49.

      Mr. Murray Season good, for defendant in error,
    cited and commented upon the following authorities :

      Ex Parte Bushnell, 8 Ohio St., 599; Hatch v. St. Clair, Sheriff, 2 C. C., 163; In re Newton, 16 C. B., 96; State, ex rel., v. Bridges, Jailer, et al., 64 Ga., 146; Dwire v. Sanders, 15 Ind., 306; Application of George et al., 5 C. C., 207; State v. Dangler, 74 Ohio St., 49; Sections 3718a, 5729, 6984a, 7131, 7133 and 7134, Revised Statutes.
   Price, J.

The occasion of this struggle for liberty is an affidavit which Carrie O. Burns filed with the mayor of the city of Xenia, Ohio, about the 21st day of June, 1906. The affidavit reads:

“The State of Ohio, “City of Xenia, “Greene County,
“Before me, Wm. F. Brennan, mayor of the city of Xenia, personally came Carrie Ormsby Burns, who being duly sworn 'according to law, deposeth and saith that George W. Burns, late of the city of Cincinnati, in the count}' of Hamilton, between January 1, A. D. 1906, and June 21, in the year of our Lord, one thousand nine hundred and six, in the city of Xenia, in the county of Greene, in the ■ state of Ohio aforesaid, did then ’and there wilfully, unlawfully and negligently fail to furnish necessary and proper food, clothing or shelter for his children, as follows: Margherita, aged 15, and Francis, aged 13, both of whom were then and there under the age of sixteen years,, the same being contrary to the statute made and provided, and against the peace and dignity of the state of Ohio.
“(Signed) Carrie O. Burns.
“Sworn to and subscribed.before me, in the city and county aforesaid, this 21st day of June, in the year of our Lord one thousand nine hundred and six.
“(Seal.) “Wm. F.. Brennan,
“Mayor of the.City of Xenia, Ohio ”

On this affidavit the mayor issued a warrant for the arrest of George W. Burns, directed to the sheriff of Greene county, and in pursuance of its command the sheriff arrested said Burns in Cincinnati. Thereupon he appeared before Judge Caldwell and applied for a writ of habeas corpus, as narrated in the statement of this case. On the return of the writ before Judge James B. Swing a hearing was had and a statement of facts agreed upon, which a bill of exceptions says, correctly recites all of the proceedings that were had before the court.

It recites the foregoing affidavit and the warrant issued thereon for the arrest of Burns. Then follows the offer of testimony by counsel for thé relator, to the effect that he -was divorced from Carrie O. Burns by decree of the court of common pleas of -Hamilton county, March 24, 1904; that the decree made no mention of the custody or care of the children, and found that Carrie O. Burns was entitled to $2,000 alimony; and that such sum should be. in full of all claims or liens against the property, both real and personal, of George W. Burns; that at that time and now George W. Burns was and is the owner of a house and lot at College Hill in Hamilton county; that immediately upon the entering of said decree Carrie O. Burns broke into said house and has been living there ever since with all of said children, • including the two under sixteen years of age, for the non-support of whom the arrest herein complained of was made upon the warrant issued by the mayor of Xenia; that George W. Burns does not live in Xenia and has never lived there; that Carrie O. Burns does not live in Xenia, nor do any of their children, but if the two children under sixteen years of age are in Xenia now, or were in Xenia at the time the. warrant was issued, they were there only temporarily - and stopping at their grandfather’s house at the instigation of said Carrie O. Burns,, and solely for the purpose of having said warrant issued for George W. Burns, who now lives and is employed in Cincinnati, Ohio, and has had his residence in such city for a great many years and has not been in Xenia for years; the said two children under sixteen years of age have lived in College Hill, Hamilton county, ever since March 24, 1904, and during the past winter attended the public schools of Cincinnati until said schools adjourned for the summer vacation, and that if George W. Burns is guilty of a crime in failing to support said minor children, such crime was committed in Cincinnati, Hamilton Hamilton county, where he and said children had continuously lived, and not in Xenia- or Greene county. The record recites that “at the conclusion of the foregoing statement of counsel for petitioner, counsel for the sheriff and for the prosecution stated in open court that for the purposes of this case only he admitted the truth of the statements of counsel for the petitioner, and moved that the writ of habeas corpus be dismissed and discharged.”

The court dismissed the petition and remanded Burns to the custody of the sheriff of Greene county, as before stated.

If the facts tendered to the court at the hearing were competent and should have been considered, there can be no doubt that Burns was entitled to discharge-from custody, for the court,has decided in The State v. Dangler, 74 Ohio St., 49, that “a prosecution under Section 7017-3, Revised Statutes, for non-support of a parent, must be instituted in the county in which the defendant resides at the time he neglects or refuses to furnish the support.”

It appeared in that case, that during the whole time laid in the indictment for the commission of the offense of non-support, the defendant was a non-resident of and absent from the county- in which the indictment was found and prosecution commenced, and when this appeared in the evidence without contradiction, it was held that the court had no jurisdiction and properly directed a verdict for the defendant. - But the question of jurisdiction in that case was not raised in a collateral proceeding in habeas corpus, as was attempted here, but the want of jurisdiction over the defendant and the offense was established as a defense before the court and jury. So here, if the evidence offered was competent, its truth being' admitted in open court by counsel for the prosecution and the sheriff, the order for the discharge of Burns should, and no doubt would have followed. As we understand the imperfect record, the judge hearing the case excluded the evidence from his consideration, and this is the error relied upon for a reversal.

It is argued with much force, and it is true to a certain extent, that one who has been arrested on a warrant charging him with the violation of a criminal law, may attack the jurisdiction of the court issuing the warrant, and upon establishing want of jurisdiction, is entitled to a discharge. This would be true if it appears upon the face of the warrant and affidavit, or the face of the warrant and indictment, if the prosecution is by indictment, that the court has no jurisdiction over the offense. This would be true if the charge and the warrant show that the crime was not committed in the county or state where the prosecution is commenced. So also if the affidavit fails to charge an offense or crime. There are other instances where want of jurisdiction may be shown on habeas corpus, but 'it is not our province now to name or schedule such instances, for they would not aid us in deciding the present question.

Neither the affidavit nor warrant in this case was assailed as defective, but on oral argument counsel for relator conceded each of them to be legally sufficient, and we concur in the concession. It is not essential to a good affidavit that it allege the place of residence of the accused. The affidavit before us describes George W. Burns as late of “the city of Cincinnati in the county of Hamilton;” but these are mere words of description of the person and do not undertake to lay the venue of the crime. When it comes to the laying of the-venue, it is alleged that between the first of January, 1906, and June 21, 1906, “in the city of Xenia, in the county of Greene, in the state of Ohio aforesaid, did then and there wilfully, unlawfully and negligently fail to furnish necessary and proper food, clothing and shelter for his children, as follows: Margherita, aged 15, and Francis, aged 13,” etc. This sufficiently charges one of the offenses defined by Section 6984a, Revised Statutes, and the charge need not allege that the accused was a resident of Greene county during the period laid for the commission of the offense. Indeed, the affidavit is fully justified by the form prescribed by the legislature" in Section 7134, Revised Statutes. It charges the commission of the offense in the language of the violated statute, and in Greene county. The affidavit and executed process give the mayor power to hear and determine the case and such power is the soul of jurisdiction. The evidence offered and excluded would be perfectly competent on the trial of the accused before the mayor who issued the warrant, and if the facts tendered should be established, he would be entitled to an acquital of the charge, as was had in State v. Dangler, supra. As illustrative of the attitude of plaintiff in error, take a case where one has been indicted for a certain crime or offense, and on his arrest he asserts and attempts to prove in support of a petition for a writ of habeas corpus, an alibi — that he was not at the scene of the crime when it was committed. Would the court hear evidence in support of the alibi? Certainly not, because that is an element of a defense to the prosecution, arid to be considered by the trying tribunal on determining his guilt or innocence.

We are aware there are some cases in the federal reports which may be construed as favoring the inquiry sought to be made controlling in this case, and which seem to extend the field in which jurisdiction may be investigated. .But they are not clearly in point, and are met by other federal cases which seem to neutralize all that can be claimed for the former. And we think perhaps it may be true that the federal courts often rule more liberally in cases involving personal liberty than do the courts of many of the states. Yet we do not think it necessary to discuss the conflicting and perhaps irreconcilable decisions from both state and federal courts, some of which, are cited in the briefs of counsel, believing that the practice in this state is largely moulded by the sections found in Chapter 8, Revised Statutes, under title “Habeas Corpus.” Section 5729 of the same provides: “If it appear that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or, if the jurisdiction appear after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment or order.”

We think it entirely clear that the mayor of Xenia had authority and jurisdiction to issue process on the affidavit, for we have found it good under the statutes'pertaining to the subject, and ■this' being true the lower court but obeyed the law in refusing to consider the evidence offered and discharge the prisoner.

Why the prosecuting witness in the mayor’s court desires to have a hearing there, if the facts tendered in this case are true, it is not for us to judge, but if those facts are conceded or proved before the mayor he should discharge the accused, as we decided in State v. Dangler, supra.

For the foregoing reasons the judgment of the lower court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Shauck, C. J.

license: Public Domain

text:
    Wrightsel v. Fee et al.

      Road supervisor and his workmen — Are liable in damages — For diversion of water from natural course, when.

    A road supervisor and those -working upon the roads under his direction are, without regard to the motive which prompts them, liable in compensatory damages for the diversion of water from its natural course, and casting it upon the lands of another, no right to make- such diversion having been acquired by the public.
    (No. 9972
    Decided June 25, 1907.)
    Error to the Circuit Court of Vinton County.
    The plaintiff, Mrs. Wrightsel, brought suit against the defendants on account of the alleged unlawful, wrongful and malicious construction of a ditch and embankment along a public road traversing her lands and those of the defendant, Fee, whereby water was diverted fro'm the course in which it had formerly and naturally flowed to and upon the lands of Fee and throwing the same upon her lands, thus creating a washing by which a gully was formed and her meadow lands were substantially injured, and a portion thereof cut off from the remainder. She prayed'1 for damages for the injury done to her lands and for the abatement of the alleged nuisance.
    Myers answered, alleging that at the time of the acts complained of he was the qualified and acting road supervisor of the district in which the lands and the road lay; that for the improvement of the road in the exercise of good faith and without malice he caused the ditch to be cleaned out and the embankment constructed, and denying generally the averments of the petition.
    Fee answered, alleging that what he did was while working out his road and poll taxes under the direction of his co-defendant, Myers, and without any intention to injure the plaintiff and substantially denying the diversion of the water from its natural course.
    Replying, the plaintiff denied the new matter alleged in the answers, except that Myers was road supervisor at the time of the acts of which she complained. On the trial of these issues before the judge and a jury evidence was introduced by the parties tending to support the allegations of the pleadings. At the conclusion of the evidence the court charged the jury as follows: “the defendant, Myers, is not liable and no verdict can be rendered against him in this case if he constructed or caused to be constructed the ditch along the west side of said road, within the district for which he was road supervisor, in good faith and in the exercise of a careful and prudent judgment as. to what he believed was best for the improvement of said road, and did not do it with any purpose to injure the plaintiff or to benefit the defendant, Fee, by draining his lands to the prejudice of the plaintiff, and the defendant, Fee, is not liable if what he did in connection with the construction of said ditch and the diversion of said stream, if such there was, was done in working out his road tax under the direction of said Myers as supervisor of said road district.” To the charge so given the. plaintiff excepted. A verdict for the defendants having been returned, the plaintiff's motion for a new trial was overruled and judgment was entered on the verdict. The judgment was affirmed by the circuit court.

      Mr. Henry W. Coultrap, for plaintiff in error.'
    The' effect of this instruction was that no verdict could be returned in favor of the plaintiff against the defendant, Myers, if the latter acted in the matter of the diversion of the water-course in good faith and not for the purpose of injuring the plaintiff or benefiting the lands of the defendant, Fee.
    This instruction narrowed the consideration of the jury down to the question of the good faith of the defendant, Myers, and the single legal question presented for the consideration of this court is whether a road supervisor, under the claim of improving a public road, may knowingly change a water-course from its natural channel and turn it upon the premises of an adjacent land owner to his injury, without becoming liable for at least nominal damages.

      Section 6921, Revised Statutes, makes it an indictable offense for any one to unlawfully divert a water-course from its natural course to the injury or prejudice of others. But, independent of the statute, no one may divert a water-course from its natural course to the injury of another without becoming personally liable for damages, and our contention is that a road supervisor has no greater rights in this respect than any one else. Wood on Nuisances, Sec. 376; Tootle v. Clifton, 22 Ohio St., 247; Beckwith v. Beckwith et al., 22 Ohio St., 180; Cooley on Torts, 569; Elliott on Roads and Streets, 2d Ed., Sec. 679; Tearney et al. v. Smith, 86 Ill., 381; Troop on Public Officers, Sec 724; Hover v. Commissioners, 44 N. Y., 113; Harris et al. v. Carson, 40 Ill. App., 147.
    Great stress is placed by counsel for the defendants upon the fact that a road supervisor is obliged to act, and that he is required under penalty of a money forfeiture to keep in repair all the public roads and highways laid out and established in his road district, and they . argue that for that reason a road supervisor can not be held personally liable for any injury done to the property rights of an adjacent land owner while engaged in improving a public highway, provided such supervisor acts in good faith and 'according to his best judgment. This argument is fully answered by the court in the case of McCord v. High, 24 Iowa, 336.
    Another case more nearly identical with the case at bar is Cubit v. O’Dett et al., 16 N. W. Rep., 679.
    The discretion of the overseer of highways, in deciding how and where he will distribute highway labor, is limited by rights of individuals, and; he and his assistants are jointly liable for the invasion of those rights.
    Highway authorities have no more rights than private persons to cut drains, the necessary result of which will be to flood the lands of individuals.
    This was shown in Ashley v. City of Port Huron, 35 Mich., 296. And when he is liable for a lawless act, all his assistants are liable with him for the consequent injury. Story on Agency, Sec. 311, 312; Brown et al. v. Howard, 14 Johns., 119; Coventry v. Barton, 17 johns., 142; Fiedler v. Maxwell, 2 Blatch., 552; Tracey et al. v. Swartwout, 10 Pet., 80; Smith v. Colby; 67 Me., 169.

      Mr. T. A. McFarland and Mr. T. S. Hogan, for defendants in error.
    This case is decided in our judgment by Sections 4715, 47I5« and 4716, Revised Statutes, pointing out the duties of road supervisors. The decisions of the Supreme Court of Ohio have been uniform on the question of non-liability of public officers when acting in good faith and in the scope of their duty, although it is true that the courts of Illinois, Iowa and Michigan hold different and from the decisions in these three states the plaintiff in error seeks to overthrow the doctrine declared by the courts of Ohio. Ramsey v. Riley, Recorder, 13 Ohio, 157; Thomas v. Wilton, 40 Ohio St., 516; Stewart et al. v. Southard, 17 Ohio, 402; Jeffries v. Ankeny et al., 11 Ohio, 372; Dunlap v. Knapp, 14 Ohio St., 64; Commissioners v. Mighels, 7 Ohio St., 110; Grimwood v. Commissioners, 23 Ohio St., 600; Yealy et al. v. Fink, 43 Pa. St., 212; Elder v. Bemis, 2 Metc., 599; Bartlett v. Crozier, 17 Johns., 449; Wilson v. Simmons, 89 Me., 242; Waldron v. Berry, 51 N. H., 136; Smith v. Gould et al., 61 Wis., 31; Cook v. Hecht, 64 Mo. App., 273; Gregory v. Small, 39 Ohio St., 346.
   Shauck, C. J.

The motive which prompts to the doing of a wrongful act is frequently important as indicating whether there should be a recovery of exemplary, or only of compensatory, damages; but in the present case, notwithstanding the testimony tending to show the diversion of water from the course in which it had naturally flowed to and upon the lands of Fee to another course which carried it to and upon the lands of-the plaintiff to her substantial injury, her right to recover compensation was, by the charge, made to depend upon the motive which prompted the act. It is perhaps a more precise statement of the view suggested in the pleadings and presented in the charge that the plaintiff can not recover compensation against Myers if, in his participation in the act complained of, he was acting in the capacity of road supervisor and in good faith;, nor against Fee if his participation in the diver-, sion of the water over his own lands to those of the plaintiff was in good faith and under the direction of his co-defendant acting as such supervisor: By clear implication, at least, it is conceded that- Fee would be liable in compensatory damages if he did not derive immunity from the participation and official direction of Myers. Nu~, merous cases are cited in the brief of counsel for the defendants to show that such immunity from damages for injuries to others attaches to the acts of public officers if done in good faith and for commendable purposes,- although it is conceded that even as to public officers a different rule prevails in some states. Careful examination will show that the differences are in the cases rather than in the decisions. Attention to the cases cited will distinguish some of them as holding the immunity of a public officer from damages for mere non-feasance. Others as according that immunity to an officer who acts judicially, and others as holding the same rule with respect to the conduct of a ministerial officer who is acting strictly within the line of official duty and authority. In general they concede that a public officer charged with ministerial duties who exceeds them to commit a tort is liable for its consequences. Separate analysis of the cases cited does not seem necessary, for the discrimination suggested is distinctly recognized and cases of the character of this have, in authoritative and well considered decisions, been assigned to their correct position.

Prominent among these is Cubit v. O’Dett et al., 51 Mich., 347. The case there decided is not distinguished from this by any fact whatever. One of the defendants was the overseer of highways and the other was working under his direction. In the course of the opinion Cooley, J. says: “As we understand it, one of the defendants was himself the overseer; but the fact is not important. Highway authorities have no more right than private persons to cut drains, the necessary result of which will be to flood the lands of individuals. This was shown in Ashley v. City of Port Huron, 35 Mich., 296, where many authorities are referred to. The highway overseer no doubt has a discretion in deciding how and where he will expend highway labor, but it is a discretion limited by the rights of individuals, and when he invades those rights he becomes liable. * * * This rule sometimes, when the agent has acted in good faith and without knowledge of the want of legal authority, may seem to operate oppressively, but it is a necessary and very just rule notwithstanding, and full protection of the citizen in his legal rights would be impossible without it. Absence of bad faith can never excuse a trespass, though the existence of bad faith may sometimes aggravate it. Every one must be sure of his legal right when he invades the possession of another.”

Equally pertinent quotations might be made from Tearney et al. v. Smith, 86. Ill., 391, and from McCord v. High, 24 Iowa, 336. Other cases of like purport are cited in the brief of counsel for the plaintiff. The essential proposition which they sustain is obvious'. It is that the public not having the right to inflict injury upon its citizens can confer' ño such right upon its officer, and-the officer having no immunity from legal liability for his act can reflect no immunity upon his co-defendant.

In the brief of counsel for the defendants it is said that if such is the rule in other states, it is not in Ohio. But the decisions of this court which, are cited in support of that view fail of the purpose. To the. contrary Beckwith v. Beckwith et al., 22 Ohio St., 180, though an action for trespass instead of nuisance, proceeds upon principles which are in manifest conflict with the instruction given in the present case.. . It recognizes the distinction 'already adverted to, and in accordance with the current of decisions holds that a party is not without remedy for such wrongs as the plaintiff alleged and her evidénce tended to show in the present case.

Judgments reversed and cause remanded for a new trial.

Price, Crew, Spear- and Davis, JJ., concur.


text:
    Tate et al. v. The State of Ohio.

      Defendant may testify — But refusal to do so — Not presumption against him — Section 7286, Revised Statutes — State must establish guilt beyond reasonable doubt, when — Criminal law — -Evidence.

    1. In Section 7286, Revised Statutes, which makes the person accused a competent witness on the trial of an indictment at his own request, but not otherwise, the provision, "but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, or any comment be made upon, such neglect or refusal,” is intended to give full effect to his immunity from all obligations to furnish evidence against himself because’of his silence, and the reference thereto' which is forbidden is such as would suggest or encourage an inference of that character.
    2. Upon such trial an instruction to the jury that the failure of the accused to testify does not relieve the state from the obligation to produce evidence which will establish guilt beyond a reasonable doubt is not an error for which a judgment following a verdict of guilty should be reversed.
    (No. 10441
    Decided June 25, 1907.)
    Error to the Circuit Court of Columbiana County.

      Plaintiffs in error and another were jointly-indicted for a felony. On their plea of not guilty they were jointly tried in the court of common pleas where a verdict of guilty was returned against all of them. Their motion for a new trial having been overruled, they were sentenced to terms in the penitentiary. During the trial they took an exception to a portion of the charge given to the jury and it was assigned as error in the circuit court where the judgment of the court of common pleas was affirmed. The portion of the charge referred to is given in the opinion.

      Mr. W. S. Anderson; Mr. J. G. Moore and Messrs. Metzger & Smith, for plaintiffs in error,
    cited and commented upon the following authorities: Schneider v. State, 2 C. C., 439; Calkins v. State, 18 Ohio St., 366; Sullivan v. State, 9 C. C., 652; 29 Am. & Eng. Ency. Law (1st Ed.), 679, 681, 682; State v. Pearce, 56 Minn., 226; State v. Robinson, 117 Mo., 663; Baker v. People, 105 Ill., 452; Brazell v. State, 26 S. W. Rep., 723; Ruloff v. People, 45 N. Y., 213; Goins v. State, 46 Ohio St., 457; Woolweaver v. State, 50 Ohio St., 286; Section 6804, Revised Statutes.

      Mr. M. J. M’Garry, prosecuting attorney, for defendant in error,
    cited and commented upon the following authorities: Calkins v. State, 18 Ohio St., 366; Schneider v. State, 2 C. C., 439; Sullivan v. State, 9 C. C., 652; 29 Am. & Eng. Ency. Law (1st Ed.), 681; State v. Pearce, 56 Minn., 226; Baker v. People, 105 Ill., 452; Farrell v. People, 24 N. E. Rep., 423; Revised Statutes of Ill., 38, Sec. 426; State v. Stevens, 67 Ia., 559;
      Commonwealth v. Harlow, 110 Mass., 411; State v. O’Grady, 65 Vt., 69; Ruloff v. People, 45 N. Y., 213; State v. Cameron, 40 Vt., 555; People v. Hayes, 140 N. Y., 496, 35 N. E. Rep., 951; Section 7286, Revised Statutes.
   Shauck, C. J.

Upon the trial of the three defendants no one of them offered himself as a witness. In its general charge the court, after giving to the jury the usual instruction that it is incumbent upon the state to produce evidence establishing the guilt of the accused beyond a reasonable doubt, added the following: “And I desire to say to you now, that the fact that no one of the defendants has gone upon the witness stand and testified, does not excuse the state from the full measure of proof to which I have cálled your attention, for it is the privilege of each defendant either to testify in his own behalf, or to decline to do so, resting his denial of the offense solely upon his plea of not guilty.” This is said to have been erroneous because in violation of Section 7286, Revised Statutes, which provides: “On the trial of all indictments, complaints, and other proceedings, against a person charged with the commission of an offense, the person so charged shall, at his own request, but not otherwise, be a competent witness; but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, nor any comment be made upon, such neglect or refusal.” The view urged by counsel for the plaintiffs in error is that the statute in unambiguous terms, as plainly applicable to the judge as to counsel for the state, forbids all reference to, and comment upon, the fact that the person accused elects not to use the opportunity offered by the statute to testify in his own behalf; thát the provision is not tó be regarded as the subject of interpretation, but is to be taken according to its plain import and that the judge’s reference to the fact for the purpose of informing the jury that the failure of the defendants to testify should not be regarded as relieving the state from the obligation to make a case against them by the evidence actually adduced can not make the reference innocuous, because any reference is a violation of the terms of of the statute. This view is entitled to considerate attention .not only because it is favored by the terms of the concluding provision of the section if taken out of its connection, as well as because it is accepted as sound by two of the members of the court.

But we are likely to go astray if we limit our view to the concluding portion of the section excluding its obvious purpose and the dominating character of a more important of its provisions. The obvious purpose of the statute was to confer upon an accused person the right, previously denied him, to testify in his own behalf, and to so confer it as to preserve unimpaired his constitutional immunity from being compelled to testify against himself. For this preservation two important provisions are made. It was provided that, “the person so charged shall, at his own request, but not otherwise, be a competent witness.” This would have been effective to prevent the state from calling the accused to the witness stand. But it would not have averted inferences unfavorable to the accused which might be drawn from his failure to avail himself of the proffered privilege of testifying in his own behalf. To accomplish that it was distinctly provided “but his neglect or refusal to testify shall not create any presumption against him.” How shall the jury know that the failure of the accused to testify shall not create a presumption against him if the judge may not impart to them that information.? The answer to this question is that if due respect is paid to the concluding provision of the section no juror will know that the accused had an opportunity to testify and, therefore, no inference could be drawn from his silence. Paraphrased, the answer is that the legislature relied upon the learning of the jury in the common law, and not less upon their invincible ignorance of statutes by which it has been changed. So persistent‘is that ignorance supposed to be that the answer assumes that juries may sit throughout long terms of the criminal courts and1 observe one accused person after another elect to testify in his own. behalf without learning that they have a legal right to do so. Upon the trial of the three defendants in the present case it would have been competent for two of them to elect to testify and for the third to decline to do so. If that course had been taken would it be supposed that the jurors would not have become aware that the law offered to the third the privilege which the others exercised in their presence? If that situation had presented itself and the defendant, desiring to be relieved of any unfavorable inference to be drawn from his silence, had requested the court to state to the jury the most important provision of the section applicable to his case the view urged, upon us would have justified, if indeed it would not have required, the refusal of the instruction. To give effect to both of the provisions of the section the later must be regarded as prohibiting such reference to the failure of the accused to testify as would suggest or encourage an inference of guilt from such failure. Certainly it applies to judge and counsel for the state alike, and since the latter would have no inducement to refer to the silence of the accused except to. suggest or encourage the forbidden inference, as to him reference to the subject is practically forbidden.

But to treat even as technical error such reference to the subject as was made by the trial judge in the present case would be to hold that the jury are to be kept in ignorance of an important rule of evidence by which the guilt of the accused is to be determined, and that knowledge of the rule is to be kept by the judge alone and applied, if applied at all, upon a motion. for a new trial. Moreover such a view would be inconsistent with the theory upon which trials by jury are conducted, that juries accept and apply the law as it is stated in the charge. Rules prescribed by statute have the same force as the rules of common law which they supplant. If upon the trial of an accused person the court should permit the state to introduce against him a confession extorted from him by duress, but should thereafter explicitly direct the jury to disregard it in their deliberation the instruction would be universally accepted as curing the error in the' admission of evidence. We adhere to the well-established rule anplicable to reviewing courts that to constitute a ground for reveísing a judgment the record must show error and the error must be prejudicial to the party who complains.

Judgment affirmed:

Price, Summers and Davis, JJ., concur.

Crew and Spear, JJ., dissent.


author: Davis, J.

text:
    The Germania Fire Insurance Co. v. Werner. Home Insurance Company v. Milligan.

      Words “any change increasing the risk," interpreted — Do not apply to the corpus of insured building, when — Section 3643, Revised Statutes — Vacancy of the property without knowledge of the insurer — Makes recovery under the policy void — Insurance law —Law of contracts.

    1. The words “any change increasing the risk,” which occur in Section 3643, Revised Statutes, refer only to change in the insured building or structure itself, and were not intended to include or apply to anything distinct from, or accidentally related to, the corpus of the insured building or structure.
    2. Where one of the conditions of a fire insurance policy is that if the building insured' shall become vacant, unoccupied or uninhabited, without the consent of the insurer, the policy shall be void; and where such building becomes vacant after the policy was issued, without knowledge or consent on the part of the insurer, and a fire occurs therein while the building is vacant, there can be no recovery under the policy. Insurance Co., v. Wells, 42 Ohio St., 519, approved and followed; Moody v. Insurance Co., 52 Ohio St., 12, overruled.
    (No. 9973
    Decided June 27, 1907.)
    Error to the Superior Court of Cincinnati.
    (No. 10099
    Decided June 27, 1907.)
    Error to the Circuit Court of Muskingum County.

      . Both' of these cases were actions to recover for loss by fire and upon,policies of insurance containing .stipulations as stated in' the opinion. In both cases- the court charged the jury that the insurance company must prove not only vacancy or occupancy different from that provided • in the policy but also an increase in the hazard because of such unoccupancy or change of occupancy; and also refused to instruct the jury, as requested, to the effect that the jury must find for the defendant if the premises were not occupied at the time of the fire.' The plaintiff recovered in each case. The judgment in the first case was affirmed in the superior court in general term and in the second casé the judgment was affirmed by the circuit court and these actions are prosecuted to reverse the judgments of the courts below.

      Mr. Hartwell Cabell and Mr. J. L. Kohl, for plaintiff in error in case No. 9973.
    The words of the policy “while occupied as a store and dwelling” (a) limit the time during which the risk assumed by the insurer- runs, and are not a part of the description of the property covered, (b) They make it necessary that the assured show that she suffered a loss during the time the building was occupied in the manner they provide for before she can recover, (c) Being no part of the description of the property, the application of Section 3643, Revised Statutes, known as the “Howland” or “Valued Policy Law,” is not involved.
    Contracts of ■ insurance, like other contracts,, must be construed to give effect ‘to the intention and express language of the parties. Insurance Co. v. Myers & Co., 62 Ohio St., 529; Cooley Briefs on Insurance, 637; Langworthy v. Insurance Co., 85 N. Y., 632; Ripley v. Insurance Co., 16 Wall., 336.
    It is a fundamental principle of the law - of contracts that a party to an agreement can not recover under the same unless he plead and prove the contract, and that his claim is within its terms.
    It is well settled that a written instrument attached to a pleading under Section 5085, Revised Statutes, is not properly a part of the pleading, even if incorporated in it by words of reference. Crawford et al. v. Satterfield, 27 Ohio St., 421; Byers v. Insurance Co., 35 Ohio St., 606.
    And while a contract pleaded in this manner may be well pleaded as against demurrer, the rule requiring that the proof conform to the allegations of the pleadings is none the less effective.
    It therefore follows that if the written instrument offered in evidence differed substantially from the contract alleged, it was prejudicial error to admit it. Hill v. Supervisor, 10 Ohio St., 621; Thatcher v. Heisey, 21 Ohio St., 668; Dean v. Yates et al., 22 Ohio St., 388; Powers v. Insurance Co., 68 Vt., 390; Cooledge v. Insurance Co., 67 Vt., 14.
    Section 3643, Revised Statutes, it will be observed provides that “a full description” of the building or structure be made by the agent of the company. It imposes no duty to examine into the title, encumbrances, other insurance, use and occupancy or contents of the building.
    Counsel for plaintiff in error then cited and! commented upon the following authorities: Web

      ster et al. v. Insurance Co., 53 Ohio St., 558; Insurance Co. v. Webster, 7 C. C., 511; Ostrander on Fire Insurance, 3d Ed., 510; Endlich on Interpretation of Statutes, Sec. 329; Insurance Co. v. Wells, 42 Ohio St., 519; Insurance Co. v. Bowersox, 5 C. C., 444; Insurance Co. v. Leslie, 47 Ohio St., 409; Moody v. Insurance Co., 52 Ohio St., 12; Insurance Co. v. Russell, 65 Ohio St., 230.

      Mr. G. W. Hengst and Mr. L. M. Mongan, for - defendant in error in case No. 9973.
    This court has held that this section is considered a part of every insurance policy and that any stipulation in a policy which was contrary to this statute was void. Insurance Co. v. Russell, 65 Ohio St., 230.
    This court also held that Section 3643, Revised Statutes, prevents the insurance company from claiming that the vacancy is a defense whether the policy provides so or not. That there must be' an increase of the risk in addition to the “vacancy” or other change in property, to enable the insurance company to avoid payment for the loss. Insurance Co. v. Moore, 52 Ohio St., 607; Insurance Co. v. Clark et al., 53 Ohio St., 414; Retterer v. Insurance Co., 55 Ohio St., 635.
    The above cases settle the question beyond any doubt.
    All these decisions support our contention that neither “vacancy” nor “change of occupancy” will avoid the policy, that there must be in addition to “vacancy” or “change” an increase of risk. Vacancy is not per se an increase of risk. Richards' on Insurance, 166; May on Insurance, 4th Ed., Vol. 1, Sec. 249; Becker v. Insurance Co., 48 Mich., 610.
    In Insurance Co. et al. v. Baldwin, 62 Ohio St., 368, “premises occupied and to be occupied by tenant as private dwelling,” was held to be merely a description of the property and the court held that the question to be tried was whether the non-occupancy of the building increased the risk. In the Insurance Co. v. Kiernan, 83 Ky., 468, the policy read “occupied as a family residence” and by a subsequent condition, the policy was to be void if the property became' vacant, held that this was' a representation as to the present condition, and an agreement that 'it would remain so, and was not material unless the change increased the risk. ' Their statute is similar to ours, and this case was cited- and approved by our Supreme Court in case of Moody v. Insurance Co., 52 Ohio St., 12.

      Mr. I. W. Mooney, for plaintiff in error in case No. 10099.
    The question presented, by the court’s charge is, does vacancy in itself avoid the policy, or is it necessary to allege and prove in addition to vacancy the hazard was increased by reason thereof. The trial court in its charge saw fit to follow the case of Moody v. Insurance Co., 52 Ohio St., 12. The conclusion reached by the court in this case is violative of the established rules of interpretation, and is in direct conflict with the decision of this court in the case of Insurance Co. v. Wells, 42 Ohio St., 519. In the case of Insurance Co. v. Wells, supra, this court held that a similar stipulation to that contained in the policy sued upon was absolute and avoided the policy.
    The policy of insurance sued upon in the case of Insurance Co. v. Wells, was issued, after the legislature had enacted what is familiarly known as the “Valued Policy Law,” or Section 3643, Revised Statutes.
    The case of Insurance Co. v. Wells, supra, being in direct conflict with the case of Moody v. Insurance Co., it becomes the duty of this court to affirm one of these cases and overrule the other. The statute then provides in the absence of any change, meaning thereby any change in the building itself, increasing the risk without the consent of the insurers, the insurer shall be liable for the face of the policy, in case of total loss. It is evident that the words “any change increasing the risk,” relates entirely to the physical condition of the building, and not to. occupancy, liens or mortgages.
    The court in the case of Insurance Co. v. Webster, 7 C. C., 511, construed Section 3643, and limited the words, “any change increasing risk,” to the physical condition 'of the building. The opinion of the circuit court in the above case was affirmed by this court in the case of Webster et al. v. Insurance Co., 53 Ohio St., 558.
    Section 3643 was considered by this court in the case of Sun Fire Office v. Clark et al., 53 Ohio St., 414, holding that a stipulation contained in a policy providing the same shall become void if the assured should take additional insurance, -without consent of the company, is not within the provision of Section 3643, Revised Statutes.
    „. The opinion of the'.court in .the case of Insur

      ance Co. v. Russell, 65 Ohio St., 230, is illustrative of the inclination to extend and enlarge the effect and operation of the statute, while, the dissenting opinion in the same case, gives to the section its natural and proper construction, without any effort by enforced construction to enlarge its operation. We heartily concur, in the dissenting opinion in the case of Insurance Co. v. Russell, supra.

    Proofs of loss must be furnished within the time provided by the terms of the policy^ unless waived during such time by the insurer. Insurance Co. v. Lindsey, 26 Ohio St., 348.
    The uniform rule' is, “there can be no waiver unless at the time of its exercise, the right or privilege waived, was in existence.” There can be no waiver of a right that has been lost. A waiver is an intentional relinquishment of a known right. 29 Am. & Eng. Ency. Law, 2d Ed., 1092; Investment Co. v. Merrill, 108 Cal., 490; Insurance Co. v. Thomas, 82 Fed. Rep., 406; Insurance Co. v. Frederick, 58 Fed. Rep., 144; Gould v. Insurance Co., 134 Pa. St., 570; Everett v. Insurance Co., 142 Pa. St., 332; Beatty v. Insurance Co., 66 Pa. St., 9; Lantz v. Insurance Co., 139 Pa. St., 546; Arthur v. Insurance Co., 78 N. Y., 462.

      Mr. S. M. Winn and Mr. I. C. Bassett, Ir., for .defendant in error in case No. 10099.
    The trial court evidently decided in its mind two propositions before delivering the charge to the jury.
    1. There being no dispute as to the fact-of vacancy, that it was a question, of law for the court to say to the jury that it was .vacant,, and

      2. That vacancy merely within itself- did not make the policy void, but only voidable to be determined by the question of whether or not the risk was increased by reason of the vacancy; and as to whether that risk was or not increased was a question of fact which must be submitted to the jury for its consideration and determination as evidenced by a part of the court’s charge.
    It is apparent from the charge of the trial court that the court followed'the case of Moody v. Insurance Co., 52 Ohio St., 12, and gave to the holding in that case the construction which we contend was the proper construction and settled law of Ohio. The policy in this case contains what is designated as “vacancy clause.”
    There are numerous cases which take note of the necessity for construction of such stipulation in a policy in view of the variety of senses in which the word void is used. Insurance Co. v. Burget, 65 Ohio St., 124.
    Counsel for plaintiff in error in his brief undertakes to quote from the language of the court, speaking through Judge Spear, in the case -of Webster v. Insurance Co., 53 Ohio St., 568, and quoting . from a part of a language adopted by Judge Spear as to the construction of Section 3643, Revised Statutes.
    We contend that this authority conclusively settles the question as against the position taken by counsel for plaintiff in error. The use of the property is a physical condition. It is a condition which can be seen when examined by the agent of the company. It is not one of record or one which would require the examination of records on the part of the agent, and in addition to that, the court in that case expressly excepts from the operation of the statute as being^ a change in respect .to incumbrances, and also it has excepted from' the provisions of the statute the obtaining of other insurance without the knowledge of the insurer and without his written consent.
    The claim of the plaintiff in error, and practically the only one urged is, that under the provisions of the policy that the mere fact that the property became vacant avoids the policy.
    Counsel for defendant in error further cited and commented upon the following authorities: Insurance Co. v. Leslie, 47 Ohio St., 409; Insurance Co. v. Hull, 51 Ohio St., 270; Sun Fire Office of London v. Clark et al., 53 Ohio St., 414; Insurance Co. et al. v. Baldwin, 62 Ohio St., 368; Insurance Co. v. Drackett et al., 63 Ohio St., 41; Retterer v. Insurance Co., 55 Ohio St., 635; Insurance Co. v. Wells, 42 Ohio St., 519; Insurance Co. v. Russell, 65 Ohio St., 230.
   Davis, J.

These cases have in common one point, which is decisive of each case. In one of the cases the policy provides that if a building1 therein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days, the entire policy shall be void, unless otherwise provided by agreement indorsed thereon or added thereto. At the time of the fire and for more than ten days previous thereto, the premises were wholly unoccupied without the knowledge of the insurer. In the other case the policy provides that if the premises described therein shall become vacant, unoccupied or uninhabited without written' consent thereon; the policy shall be null and void. The building described in the policy was not occupied when the fire occurred nor for a considerable time before. Both cases are therefore controlled by Farmers’ Ins. Co. v. Wells, 42 Ohio St., 519, unless a change of occupancy amounting, to a vacancy is within the words, “any change increasing the risk,” occurring in Section 3643, Revised Statutes.

So much of the section as is material to the present purpose is as follows: “Any person * * * hereafter insuring any building or structure ■against loss or damage by fire or lightning, * * * 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 consent of the insurers, and also of intentional fraud on the part of the insured, in case of total loss, the whole amount mentioned- in the policy * * * shall be paid, and in case of a partial loss the full amount of the partial loss shall be paid * * *.”

This enactment was passed March 5, 1879 (76 O. L., 26), and the policy which was sued on in Insurance Co. v. Wells, supra, was issued a year and a half after the passage of this act and was clearly governed thereby, if the statute covers such a case. It is not discoverable, however, that any reference was made to the statute by counsel or court, at any stage of the case, through several years of litigation. Inasmuch as the able counsel and the judges of the several courts must be presumed to.have known of the existence of the statute, the inference is very strong that it was conceded all around that the statute did- not apply to the facts of that case. Yet, since the reason for the silence of this court upon that point can only be conjectural, the question here still remains with us. The ruling in Insurance Co. v. Wells, however, stands unquestioned and unqualified, except inferentially in cases hereinafter commented upon..

Proceeding now to a construction of the statute it will be noticed that it first, distinctly and without any ambiguity whatever, provides what may be required by “any person hereafter insuring any building or structure.” Pie “shall cause such building or structure to be examined by an agent of the insurer.” It is not required that the examination shall extend to the uses, purposes and surroundings of the “building or structure,” nor to ownership, incumbrances, possession of exposures of the “building or structure;” for if we may go outside of the explicit language of the .statute for one thing, we may for all. The information to be acquired by such an indefinite and extended examination may be valuable, and even necessary, in some aspects of the contract of insurance; but the purpose of the statute is satisfied when the examination is limited to the thing to be insured, that is, the “building or structure,” and when the insurer’s agent has made a full description.and fixed the insurable value “thereof,” that is, of the “building or structure.” Now we come to the latent ambiguity of the statute, an ambiguity which disappears entirely if we keep in mind the sole purpose of the statute, to fix a value on the. insured “building or structure” which should be unquestionable in case of a total loss and without regard to any other controversies which might arise between the parties to the contract. “In the absence of any change increasing the risk -vyithout consent of the insurers, * * * in case of total loss, the whole amount mentioned, in, the policy * * * shall be paid,” says the statute. Any change in what? Manifestly, in the “building or structure” which is insured and valued, because only that is the subject-matter of the- statute and of the whole sentence in which the phrase “any change” occurs. “All words of a general nature not express and precise are to be restrained unto the fitness of the Subject-matter or the person.” Steamboat Messenger v. Pressler, 13 Ohio St., 255, 262.

Considerations similar to these have led this court to hold that a stipulation in a policy that it shall become void by the taking of additional insurance without the consent of the insurer, and a stipulation that a policy shall become void if any part of the- property insured shall be incumbered by mortgage without the consent of the company, are not within the provisions of Section 3643, Revised Statutes. The Sun Fire Office of London v. Clark et al., 53 Ohio St., 414; Webster et al. v. Dwelling House Ins. Co., 53 Ohio St., 558. The ground of these judgments was admirably stated by Minshall, J., in the first case cited here, as follows : “This examination relates only to the physical condition of the property, and, therefore, by the ordinary rules of construction the general language immediately 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 woúld have been so introduced as not to be naturally restrained by the context to a more limited meaning.” But it was also said in that case that: “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;” and in the other case it was said by the judge who delivered the opinion of the court that “the change referred to in the statute relates to some physical change in the insured building, its use or its surroundings” etc. See p. 568. Now, as we have already said, we see no warrant in the statute for extending its terms over anything else than the “building or structure” which is the subject of'the insurance; and we think that we have demonstrated that the statute was not intended to include or apply to anything distinct from, or accidentally related to, the corpus of thé insured building. We, therefore, think it unfortunate that these able judges did not speak on this subject with their usual close discrimination;’ otherwise we might not have been called upon to review the subject now. Those cases, however, ended in proper judgments, as we think it must be conceded; and. if covenants such as those are not annulled by the statutes, where shall the line be drawn? It was.argued in the above' quotation from The Sun Fire Office of London v. Clark, supra, and in an opinion by Laubie, J., in 7 C. C., 511, 519, et seq, to which special reference is made in Webster v. Dwelling House Ins. Co., supra, that if it had been intended to enlarge the meaning of the precise words of the statute so as to embrace other matters made material by the agreement of the parties, it would have been more natural to have said so definitely and directly. That' seems to be sound reasoning, and if true, then the conclusion would seem to follow that the legislature meant what it said, and no more; and it would also seem to follow, conversely, that if the courts may stretch the words, from their obvious meaning of any change in the building or structure, to any change in the occupation of the building, then there is no limit to such judicial legislation as would eliminate every condition of the policy relating to title, possession, incumbrance, over-insurance, use, occupation, and the like. We can not think that the legislature ever intended, to be so interpretéd.

The courts below in both cases now before this court followed the case of Moody v. Insurance Co., 52 Ohio St., 12. The reasoning in support of the final judgment in that case is peculiar and, it seems to us, unsatisfactory. On the point now under consideration, the opinion occupies less than a page and is, in substance, as follows: “The statute being in force when the policy was issued, became a part of the contract of insurance, and controls its construction and operation.” It is undoubtedly true that the statute controls according to its intent and meaning. , “The condition of the policy in regard to the occupancy is therefore so qualified by the statute, that, in the absence of intentional fraud on the part of the insured, to make the change from occupancy, to disuse or want of occupancy available as a defense, it must appear that the risk was increased.” With all respect, we are unable to see that the conclusion follows the premises. Insurance Co. v. Leslie, 47 Ohio St., 409, is cited to support the conclusion and we will examine it presently. The opinion continues: “It is well settled that the risk is not necessarily, or prima facie increased, by the insured property becoming vacant or unoccupied (citing authorities). And, therefore, when the insurer pleads such change as a defense to an action on the policy, the answer must allege that the risk was increased on account of it, unless the insured was guilty of fraud.” That is the whole reasoning-, upon this point; and the last “therefore” might be accepted as valid, if it had been first shown that ‘such change” was within the meaning of the statute.

We now take up Insurance Co. v. Leslie, 47 Ohio St., 409, which seems to have been relied upon as the chief corner-stone of Moody v. Insurance Co. Since no reason was given for the ruling in Moody v. Insurance Co, except a reference to this case we have looked through .it carefully for some attempt to show that the words of the statute, “any change” mean any change whatever, in the broadest sense, instead of any change in the building or structure; but we have looked in vain.. The construction is dogmatically announced,” p. 415, without any attempt at elucidation. After a-statement of the substance -of the statute, the- fot-. lowing unsupported declaration is made: “If, after the policy is issued there be any change in the condition or surroundings of the property which increases the risk, without the consent of the insurer, or, if there be intentional fraud on the part of the insured, these are regarded by the statute as matters of substance and may defeat a recovery on-the policy.” This is substantially all of the opinion in the Leslie case on this point; and the syllabus is no clearer than the statute, for it is in the same language as the statute. It reads as follows: “The more effectually to- accomplish these results, the statute holds the company liable on its policy, unless, after its issue, a change occurs increasing the risk ’’ etc. Against this we must place the same query which arises upon a reading,of the words of the statute. A change in what?

We have; been referred also to The Milwaukee Mechanics’ Ins. Co. v. Russell, 65 Ohio St., 230. That case was decided on the points stated in the syllabus, all the judges concurring; but it must be apparent from the report that at least half of the members of the court did not concur in all-that was said in the opinion by Williams, J.

The citation of cases which have been decided upon the authority of Moody v. Insurance Co., is beside the question. The question clearly presented here is, whether, in view of Section 3643, Revised Statutes, Insurance Co. v. Wells, 42 Ohio St., 519, controls these cases, or whether they must be decided according to Moody v. Insurance Co., 52 Ohio St., 12. Our- conclusion is, for the reasons stated, that the law as stated in Insurance Co. v. Wells has not been qualified by the statute, and that Moody v. Insurance Co. must be overruled.

The judgments below are reversed and judgment for the plaintiffs in error.

Si-iauck, C. J., Price, Crew and Summers, JJ., concur. Spear, J., dissents.


text:
    No. 9675.
    The Ohio River & Columbus Railway Co. v. Purdum et al.
    Decided February 12, 1907.'
    Error to Circuit Court of Brown county.

      Mr. G. Bambach and Mr. J. R. Moore, for plaintiff in error. Mr. Eli B. Parker, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9681.
    Sims, Treasurer, v. Mahoney.
    Decided February 12, 1907.
    Error to Circuit Court of Franklin county.

      Messrs. Butler, Weinland & Marshall, for plaintiff in error. Mr. Geo. D. Jones, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9707.
    Williams et al. v. Snyder.
    Decided February 12, 1907.
    . Error to the Circuit Court of Coshocton county.

      Mr. C. B. Hunt and Mr. T. C. Roche, for plaintiffs in error. Messrs. Glenn & Stockum and Messrs. Voorhees & Voorhees, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9716.
    Hathaway v. Farley, Exr., et al.
    Decided February 12, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Hogan & Parmely, for plaintiff in error. Messrs. 'Higley & Maurer; Messrs. Blandin, Rice & Ginn and Messrs. Foran & McTighe, for defendants in error.-
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9718.
    Crile v. Berger et al.
    Decided February 12, 1907.
    Error to Circuit Court of Tuscarawas county.

      Mr. J. W. Yeagley and Messrs. 'Neely & Patrick, for plaintiff in error. Mr. J. H. Mitchell and Mr. C. J. Fisher, for defendants in error.
   Judgment affirmed.

Shauck, C. J., .Crew and Spear, JJ., concur.


text:
    No. 9727.
    McCurdy v. The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.
    Decided February 12, 1907.
    'Error to Circuit Court of Tuscarawas county.

      Mr. T. H. Loller, for plaintiff in error. Mr. T. D. Healea and Messrs. Dunbar & Sweeney, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9952.
    Connor et al., Doing Business as The Excelsior Sewer Pipe Co., v. Connor.
    Decided February 12, 1907.
    Error to Circuit Court of' Jefferson county.

      Mr. David M. 'Gruber and Mr. E. E. Erskine, for plaintiffs in error. Mr. J. C. Bigger arid Mr. Ira Blackburn, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9963.
    Village of Hicksville v. Bricker.
    Decided February 12, 1907.
    Error to Circuit Court of Defiance county.

      Mr. J. C. Ryan and Mr. B. B. Kingsbury, for plaintiff in error. Messrs. Sutphen & Sutphen, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9964.
    Village of Hicksville v. Crowl et al.
    Decided February 12, 1907.
    Error to Circuit Court of Defiance county.

      Mr. J. C. Ryan and Mr. B. B. Kingsbury, for plaintiff in error. Messrs. Sutphen & Sutphen, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9967.
    The State of Ohio v. Ewers.
    Decided February 12, 1907.
    Exceptions to the Court of Common Pleas of Williams county.

      Mr. Edward Gaudern, prosecuting attorney, for plaintiff in error. Mr. C. A. Bowersox, for defendant in error.
   Exceptions overruled on the ground that the court of common pleas had no jurisdiction over, the defendant.

Price, Summers and Davis, JJ., concur.


text:
    No. 9971.
    Pierce et al. v. Armstrong et al.
    Decided February 12, 1907.
    Error to Circuit Court of Madison county.

      Mr. E. E. Tanner and Mr. Thos. E. Powell, for plaintiffs, in .error. Mr. C. 'W. White; Mr. G. W. Wilson and Messrs. Murray & Emery, for defendants in error.
   Judgment affirmed.

Shauck, C. J;, Crew, and-Spear,


text:
    No. 9974.
    Bennett et al. v. The Cleveland & Marietta Railway Co.
    Decided February 12, 1907.
    Error to Circuit Court of Guernsey county.

      Mr. J. B: Ferguson, for plaintiffs in error. Messrs. Mathews & Mathews, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9981.
    Riley v. Gerlaugh, Jr., Admr.
    Decided February 12, 1907.
    Error to Circuit Court of Clark county.

      Mr. C. S'. 0 linger; Mr. ■James Johnson, Jr., and Mr. Sam’l M. Ralston, for plaintiff in error. Messrs.. Martin & Martin, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9985.
    The Portsmouth Street Railroad & Light Co. v. Willis.
    Decided February 12, 1907.
    Error to Circuit Court of Scioto county.

      Mr. T. C. Anderson,- for plaintiff in error. . Mr. Theo. K. Funk and Mr: .Cecil T. Miller, for defendant iri .error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9996.
    In re Estate of William W. Peters. Peters v. Scoble, Guardian.
    Decided February 12, 1907.
    Error to Circuit Court of Hamilton county.

      Messrs. Johnson & Levy and Mr. Clyde P. Johnson, for plaintiff in error. Mr. Edward J. Dempsey and Mr. H. A. Nieberding,■ for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.-


text:
    No. 9997.
    Kushman, Jailor, et al., v. Michael.
    Decided February 12, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. W. S. Little and Messrs. Ireton, Collins, Schoenle & Poor, for plaintiffs in error. Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant ■ in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9736.
    McDonald et al., Partners, v. v. McKelvy et al., Partners.
    Decided February 19, 1907.
    Error to Circuit Court of Jefferson county.

      Mr. Henry Gregg; Mr. J. C. Bigger and Mr. Ira Blackburn, for plaintiffs in error. Mr. Charles P. Lline, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9765.
    Serhant v. Englebry.
    Decided February 19, 1907.
    Error to Circuit Court of Cuyahoga county.

      Mr. Berkeley Pearce, for plaintiff in error. Messrs. Beardsley & Morgan, for defendant in error.
   Judgment affirmed, there being no statutory method of appeal.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9766;
    Hutchison v. The City of Lima.
    Decided February 19, 1907.
    Error to Circuit Court of Allen county.

      'Messrs. Becker & Becker, and Messrs. Ridenour & Halfliill, for plaintiff in error. Messrs. Wheeler & Bently, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9888.
    Duwelius et al. v. Duwelius.
    Decided February 19, 1907.
    Error to Superior Court of Cincinnati.

      Mr. Frank F-. Dinsmore and Mr. L. W. Goss, for plaintiffs in error. Mr. Michael G. Heintz, for defendant in error.
    Judgment reversed and judgment quieting title seven-eights in Luella Duwelius • and one-eighth in Charles Edward Duwelius.
   Each of the parties named to pay one-half of the costs in all the courts.

Shauck, C. J., Price, Summers, Spear and Davis, JJ., concur.


text:
    No. 10005.
    Gillen et al. v. The Wellston-Hamden Gas Co.
    Decided February 19, 1907.
    Error to Circuit Court of Jackson county.

      Mr. A. E. Jacobs and Mr. T. S. Hogan, for plaintiffs 'in' error. Mr. L. B. Denning and Mr. E. E. Eu-banks, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Davis, JJ., concur.


text:
    No. 10010.
    Bates v. McFerren.
    Decided February 19, '1907.
    Error to Circuit Court of Seneca county.-

      Mr. Jesse Stephens and Mr. Alex. Kiskadden, for plaintiff in error. Mr. A. Skran

      sewfky; Mr. E. E. Williams and Messrs. Safer, Seymour & Safer, for defendant in .error.
   Judgment affirmed.

Síiauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 10019.'
    The Sun Publishing Co. v. Clark.
    Decided February 19, 1907.
    Error to Circuit Court of Clark county.

      Mr. John M. Cole and Mr. Stewart L. Tatum, for plaintiff in error. Messrs. Stafford & Arthur, for defendant in error.
   Judgment affirmed.

Shauck, C: J., Crew and Spear, JJ., concur.


text:
    No. 10023.
    Fieser & Bentley, a Partnership, v. The Bates Machine Co.
    Decided February 19, 1907.
    Error to Circuit Court of Perry county.

      Mr. John R. Horst, for plaintiff in error. Mr. George W. Bope, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Price, Summers, Spear and Davis, JJ., concur.


text:
    No. 10030.
    The City of Cincinnati v. Johnson.
    Decided February 19, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. Jesse Low-man, city solicitor, .and Mr. Walter A. De Camp, for plaintiff in error. Messrs. Johnson & Levy, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10063.
    The Columbus, Delaware & Marion Electric Railroad Co. v. Chestnut.

      Decided February 19, 1907.
    Error to Circuit Court of Franklin county.

      Messrs. Williams, Taylor & Pretzman, for plaintiff in error. Messrs. Pugh & Pugh, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10214.
    Lippert v. Parker, Treasurer, et al.
    Error to Circuit Court of Lucas county.
    Decided February 19, 1907.

      Mr. B. A. Hayes, for plaintiff in error. Mr. C. S. Noythup, city solicitor;'

      Mr. W. G. Ulery and Mr. Orion W. Nelson, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Price, Crew and Summers, JJ., concur.


text:
    No. 9111.
    Reed v. The Pittsburg & Lake Erie Railroad Co.
    Decided February 26, 1907.
    Error to the Circuit Court of Mahoning county.

      Messrs. Murray & Koonce and Mr. W. S. Anderson, for plaintiff in error. Mr. J. P. Wilson, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9728.
    Fitzhugh v. Catalano.
    Decided February 26, 1907.
    Error to Circuit Court of Cuyahoga county.

      Mr. Berkeley Pearce, for plaintiff in error. Messrs. Weed, Miller & Nason, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Davis, JJ., concur.


text:
    No. 10033.
    Citizens Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of -Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

Shauck, C: J. Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10034.
    New York Fire Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10035.
    Lumbermen’s Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10036.
    The Hanover Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error.- Mr. Frank

      Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

Si-iaucic, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10037.
    The Western Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank. Seinsheimer and Mr. John R. Sayler, for defendant in error.
   ' Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr.; ante.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10038.
    Firemen's Fund Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fire Assn. of. Phila. v. Appel, Admr., ante.

Sriauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10039.
    The Concordia Fire Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10040.
    Mechanic's Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10041.
    The Firemen's Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed, on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

Shaúck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10042.
    The National Fire Insurance Co. v. Appel, Admr.
    Decided February 26, 1907.
    Error to Superior Court of Cincinnati.

      Messrs. Cabell & Kohl, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

Shauck, C. J,, Price, . Crew, Summers, Spear 'and Davis, JJ., concur. ,


text:
    No. 10043.
    The Royal Exchange Assurance Co., v. Appel, Admr.
    Decided February 26, ■ 1907.
    ■Error to Superior Coprt of Cincinnati.

      Messrs. .Cabell .& Kohl, for. plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant 'in error.
   Judgment affirmed on authority of Fire Assn. of Phila. v. Appel, Admr., ante.

■Shauck, C. J., Price, Crew, Summers, Spear .■and Davis, JJ.-, concur.


text:
    No. 10044.
    The Royal Insurance Co. v. Appel, Admr.
    Decided February 26/ 1907.-
    Error to Superior Court of Cincinnati.

      Messrs. Paxton & Warrington, for plaintiff in error. Mr. Frank Seinsheimer and Mr. John R. Sayler, for defendant in error.
   Judgment affirmed on authority of Fife Assn. of Phila. v. Appel, Admr., ante.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10050.
    Byrnes v. Burkhold et al.
    Decided February 26, 1907.-
    Error to Circuit Court Court of Hamilton county.

      Mr. Louis J. Dolle and Messrs. Herrlinger & Southworth, for plaintiff in error. Messrs. Burch & Johnson and Messrs. Dempsey & Nieberding, for defendants in error.
   Judgment affirmed.

Si-iaúck, C. J., Crew and Spear, JJ., concur.


text:
    No. 10062.
    Klein v. Klein et al.
    Decided February 26, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. W. A. Hicks, for plaintiff in error. Mr. Louis A. Ireton; Mr. J. W. Heintzman; Mr. E. A. Hafner and Mr. Ellis B. Gregg, for defendants in error.
   Judgment affirmed.

Si-iauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9696.
    Luttrell et al. v. Murphy et al.
    Decided March 5, 1907.
    Error to Circuit Court of Clinton county.

      Mr. David V. Van Pelt; Mr. Mills Gardner; Mr. James M. Morton and -Mr. Edward M. West, for plaintiffs in error. Messrs. Smith & Clevenger, for defendants in error.
   Judgment affirmed.

Price, Crew and Spear, ' JJ., concur.


text:
    No. 9704.
    Duff et al., Partners, v. Rush.
    Decided March 5, 1907.
    Error to Circuit Court of Fayette county.

      Mr. John Logan, for plaintiffs in error. * Mr. Frank A. Chaffin, for defendant in' error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9708.
    Richardson v. Baker.
    Decided March 5, 1907.
    Error to Circuit Court of Coshoc-' ton county.

      Mr. R. B. McDermott and .MV. J. C. Daugherty, for plaintiff in error. Messrs. Pomerene & Pomere'ne, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ.,concur.


text:
    No. 9729.
    McDonald v. The Union Central Life Ins. Co.
    Decided March 5, 1907.
    Error to Superior Court of Cincinnati.

      Mr. R. B. Robertson and Messrs. Robertson ' & Buchwalter, for plaintiff in error. Messrs. Maxwell & Ramsey; Mr. Robert Ramsey and Mr. W. W. Ramsey, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9732.
    The Toledo Cold Storage Co. v. Tiedtke Brothers.
    Decided March 5, ' 1907.
    Error to Circuit Court of Lucas county.

      Messrs. Paddock & Rawley; Messrs. Seney & Johnson and Mr. Curtis T. Johnson, for plaintiff in error. Mr. Frank M. Sala, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9783.
    Bouck v. Nietert et al.
    Decided March 5, 1907.
    Error to Circuit Court of Montgomery county.

      Mr. Oscar F. Davisson, for plaintiff in error.' Mr. Charles J. McKee, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9982.
    Snyder et al., Exrs., et al., v. Young et al.
    Decided March 5, 1907.
    Error to Circuit Court of Clark county.

      Mr. John L. Zimmerman; Mr. F. M. Hagan and Mr. W. W. Witmeyer, for plaintiffs in error. Messrs. Keifer & Keifer, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 10011.
    Collins v. Matthews et al.
    Decided March 5, 1907.
    Error to Circuit Court of Belmont county.

      Mr. Albert W. Kennon and Mr. Newell K. Kennon, for plaintiff in error. Mr. Thomas E. Powell, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Price and Summers, JJ., concur.


text:
    No. 10012.
    Smith, Exr., v. Matthews et al.
    Decided March 5,. 1907.
    Error to Circuit Court of Belmont county.

      Messrs. Smith & Howard, for plaintiff in error. Mr. Thomas E. Powell, for defendants in error.

   Judgment affirmed.

Shauck, C. J., Price and Summers, JJ., concur.-


text:
    No. 10014.
    Gage, Admr., v. Beck.
    Decided March 5, 1907.
    Error to Circuit Court.of Cuyahoga county.

      Messrs. Guerin & Page, for plaintiff in error. Mr. Arnold Green and Mr. Thomas. Gibbons, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Speár, JJ., concur..


text:
    No. 10049.
    Hicks, Admr., v. Hicks.
    Decided March 5, 1907.
    Error to Circuit Court of Cuyahoga county.

      Mr. T. H. Johnson and Mr. William Howells, for plaintiff in error. Messrs. Brady & Dowling and Mr. D. Bergstein, for defendant in error.
   Judgment affirmed.

Price, Crew and Davis, JJ., concur.


text:
    No. 10057.
    The Esmeralda Canning Co. v. The Union Trust Co.
    Decided March 5, 1907.

      Error, to Circuit Court of Pickaway county.

      Mr. H. J. Booth; Mr.' Percy A. Walling and Mr. W. H. Jones, 'for plaintiff in error. Mr. Fred. C. Rector, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10065.
    Madigan, Admr., v. The Dime Savings & Banking Co. et al.
    Decided March 5, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Foran, McTighe, Pearson & Marvin, for plaintiff in error. Messrs. Hills & Van Derveer, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 10080.
    Clark, Admx., v. The Stilwell-Bierce & Smith-Vaile Co.
    Decided March 5, 1907.
    Error to Circuit Court of Montgomery county.

      Mr. John J. Hoover and Mr. Charles H. Kumler, for plaintiff in error. Messrs. McMahon & McMahon, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10096.
    Wright v. Gardello.
    Decided March 5, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. Stanley E. Bowdle, for plaintiff in error. Mr. Joseph B. Kelley and Messrs. Kelley & Hauck, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 10097.
    Richards v. The Cleveland City Railway Co.
    Decided March 5, 1907.
    Error to. Circuit Court of Cuyahoga county.

      Mr. W. H. Boyd and Mr. W. K. Stanley, for plaintiff in error. Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Price, Crew, Summers ^.nd' Spear, JJ., concur. Davis, J., dissents.


text:
    No. 10100.
    Louisville & Nashville Railroad Co. v. The Globe Soap Co.
    Decided March 5, 1907.
    Error to Circuit Court of Hamilton county.

      Mr. Ellis G. Kinkead; Mr. H. Kenneth Rogers and Mr. Challin B. Ellis, for plaintiff in error. Messrs. Kittredge & Wilby and Mr. Harry L. Gordon, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10107.
    Sample v. Aetna Insurance Co. et al.
    Decided March 5, 1907.
    Error to Circuit Court of Lawrence county.

      Mr. A. R. Johnson and Mr. E. E. Corn, for plaintiff in error. Mr. Charles E. Belcher, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10116.
    The Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. A. Tanner & Son.
    Decided March 5, 1907.
    Error to Circuit Court of Madison county.

      Messrs. Darlington & Darlington; Mr. Charles Darlington and Mr. John F. Locke, for. plaintiff in error. Messrs. Murray &

      'Emery, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10124.
    Quinby, Admx., v. Robertson et al.
    Decided March 5, 1907.
    Error to Circuit Court of Wayne county.

      Mr. M. L. Spooner, for plaintiff in error. Mr. H. B. Swartz, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ.,' concur.


text:
    No. 10125.
    Herdman v. Karch.
    Decided March 5, 1907.
    Error to Circuit Court of Franklin county.

      Messrs. Dyer, Williams & Stouffer, for plaintiff in error. Mr. L. L. Rankin and Mr. Fred. C. Rector, for defendant in error.
   Judgment affirmed on authority of Raudabaugh v. Hart, 61 Ohio St., 73.

Price,' Summers and DAvis, JJ., concur.


text:
    No. 10137.
    Mulholland v. Groot.
    Decided March 5, 1907..
    Error to Circuit Court of Cuyahoga county.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error. Mr. Geo. A. Groot and Mr. E. I. Thobaben, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10215.
    Dunham v. Frizzell, Sheriff.
    Decided March 5, 1907.
    Error , to Circuit Court of Morrow county.

      Mr. J. W. Barry, for plaintiff in error. Mr. L. K. Powell, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9819.
    Baldwin et al. v. Culver et al.
    Decided March 12, 1907.
    Error to Circuit Court of Wyandot county.

      Mr. Benjamin Meek, for plaintiffs in error. Messrs. Carter S’ Goodrich, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9825.
    The United States Fidelity & Guaranty Co. v. Campbell.
    Decided March 12, 1907.
    Error to Circuit Court of Knox county.

      Mr. F. V. Owen and Mr. J. A. Schaeffer, for plaintiff in error. Messrs. -Waight S’ Moore and Messrs. H. H. & R. M. Greer, for defendant in error.
   Judgment affirmed.

Shaück, C. J., Crew and Spear, JJ., concur.


text:
    No. 9826.
    The United States Fidelity & Guaranty Co. v. Kirk.
    Decided March 12, 1907.
    Error to Circuit Court of Knox county.

      Mr. F. V. Owen and Mr. J. A. Schaeffer, for plaintiff in error. Messrs. Waight & Moore and, Messrs. H. H. S’ R. M. Greer, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ.’, concur.


text:
    No. 9833.
    The Economy Building & Loan Co. v. Newman.
    Decided March 12, 1907.
    Error to Circuit Court of Cuyahoga county.

      Messrs.

      Foster & Foster, for plaintiff in error. Mr. Richard H. Lee, for defendant in error;
   Judgment affirmed.

Shauck, C. J.,' Crew and Spear, JJ., concur.


text:
    No. 9842.
    The Baltimore & Ohio Railroad Co et al. v. Erie Railroad Co et al.
    Decided March 12, 1907:
    Error to Circuit Court of Trumbull county.

      Messrs. Arrel, Wilson, Rowland & Harrington and Mr. Charles Fillius, for plaintiffs in error. Mr. T. H. Gillmer and Mr. George Bunting, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur


text:
    No. 10006.
    The State of Ohio v. Shafer.
    Decided March 12, 1907.
    Error to Circuit Court of Putnam county.

      Mr. Wade H. Ellis, attorney-general, and Messrs. Handy dr Unverferth, for plaintiff in error. Messrs. Bailey & Bailey, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J., Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 10066.
    The Lake Shore & Michigan-Southern Railway Co. et al. v. Horan, Admx.
    Decided March 12, 1907.
    Error to Circuit Court of Mahoning county.'

      Messrs. Arrel, Wilson, Rowland dr Harrington, for plaintiffs in error. Mr. D. F. Anderson; Mr. James B. Kennedy; Messrs. Hopkins, Bole, Cobb & Newcomb and Messrs. Anderson, McNab dr Anderson, for. defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10103.
    The Luhrig Coal Co. v. Montgomery.
    Decided March 12, 1907.
    Error to Superior Court of Cincinnati.

      Messrs, Burch & Johnson, for plaintiff in error. Messrs. Galvin & Bauer, for defendant in error.

   Judgment affirmed.

Price, Summers and Spear, JJ., concur.


text:
    No. 10120.
    Chaffin v. Pavey et al.
    Decided March 12, 1907.
    Error to Circuit Court of Fayette county.

      Messrs. Post & Reed and Mr. Humphrey Jones, for plaintiff in error. Mr. J. Frank Wilson and Messrs. Wilson & McBride, for defendants in error.
    Judgment affirmed on grounds stated in journal entry.
   It is ordered and-adjudged by this court that the judgment of the said circuit court be, and the same hereby is, affirmed on the ground that it appears from the circumstances and facts attending the conveyance of September 5, 1855, from Sylvester Clifton to Henry S. Pavey, and from the consideration paid therefor, all of which are disclosed in the record, that Henry S. Pavey, at said date, became the equitable owner in fee simple of the premises described in said conveyance, and that the plaintiff in error, Frank A. Chaffin, had the means of knowing and did know of said equitable ownership before he purchased and received his deed for the same premises from said Clifton in September, 1904, and that on the amended answer and cross-petition of Henry A. Pavey the circuit court would have been justified in furtherance of justice in reforming said conveyance of September 5, 1855, so as to make it a conveyance in fee simple to said Henry S. Pavey of the premises; and its decree in effect is a reformation of said instrument in that respect. The Globe Insurance Co. v. Boyle et al., 21 Ohio St., 119.

Price, Summers and Davis, JJ., concur.


text:
    No. 10167.
    McCracken v. Sims, Treasurer, et al.
    Decided March 12, 1907.
    Error to Circuit Court of Franklin county.

      Mr. C. W. Mc-Cleery and Messrs. Huggins, Huggins & Johnson, for plaintiff in error. Mr. O. E. Davis; Messrs. Dyer, Williams & Stouffer and Mr. L. H. Innis, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10168.
    McCracken v. Sims, Treasurer, et al.
    Decided March 12, 1907.
    Error to Circuit Court of Franklin county.

      Mr. C. W. Mc-Cleery and Messrs. Huggins, Huggins & Johnson, for plaintiff in error. Mr. 0. E. Davis; Messrs. Dyer, Williams & Stouffer and .Mr. L. H. Innis, for defendants in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 10259.
    Haugh v. The State of Ohio.
    Decided March 12, 1907.
    Error to the Circuit Court of Montgomery county.

      Mr. C. J. Matter-son and Mr. IT. F. Nolan, for plaintiff in error. Mr. R. R. Nevin and Mr. Wade H. Ellis, attorney-general, for defendant in error.
    Judgment affirmed.
   Judgment to be carried into effect April. 6, 1907.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9850.
    Crowell, Auditor, et al., v. The Glenwood Cemetery Association.
    Decided March 19, 1907.
    Error to Circuit Court of Ashtabula county.

      Mr. H. E. Starkey, for plaintiffs in error. Mr. Allen M. Cox, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, J. J., concur.


text:
    No. 9855.
    The Horton Manufacturing Co. v. The Atlanta Brick Machinery Co.
    Decided March 19, 1907.
    Error to Circuit Court of Lake county.

      Mr. Homer Harper; Mr. H. TV Nolan and Mr. M. A. Tuttle, for plaintiff in error. Mr. H.-E. Hammar and Mr. M. S. Osborne, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9858.
    Roasberry, Admr., v. Brumfield, Treasurer.
    Decided March 19, 1907.
    Error to Circuit Court of Richland county.

      .Messrs. Laser, Huston & Marquis, for plaintiff in error. Mr. L. C. Mengert and Mr. C. H. Workman, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9867.
    Fisher v. The State of Ohio.
    Decided March 19, 1907.
    Error to Circuit Court of Harrison county.

      Mr. Albert Q. Barnes, for plaintiff in error. Mr. B. W. Rovoland and Mr. B. S. McNamee, prosecuting attorneys, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9880.
    Minier v. The Canton-Akron Railway Co.
    Decided March 19, 1907.
    Error to Circuit Court of Summit county.

      Mr. I. H. Phelps and Messrs. 'Tibbals & Frank, for plaintiff in error. Messrs. Welty & Albaugh, for defendant in error.
   Judgment affirmed.

Sitauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 9884.
    The Metropolitan Life Insurance Co. v. Donithen, Admr.
    Decided March 19, 1907.
    Error to Circuit Court of Marion county.

      Mr. Charles Wardlow and Messrs J. F. & L. B. McNeal, for plaintiff in error. Messrs. Ja’soby & Donithen and Messrs. Mouser & Quigley, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew and Spear, JJ., concur.


text:
    No. 10208.
    Yaryan, a Taxpayer, v. The City of Toledo et al.
    Decided March 19, 1907.
    Error to Circuit Court of Lucas county.

      Mr. Lewis W. Melgan; Mr. A. T. Goorley and Mr. Charles S. NoMhup, city solicitor, for plaintiff in error. Mr. Charles S. Northup, city solicitor; Mr. Frank A. Boyer; Messrs. Smith & Baker; Messrs. Marshall &' Fraser and Mr. U. G. Denman, for defendants in error.
   Judgment affirmed.

Sitauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9682.
    The Caldwell Furnace Foundry Co. et al. v. The Peck-Williamson Heating & Ventilating Co.
    Decided March 26, 1907.
    Error to Circuit Court of Hamilton county.

      Messrs. Gouldner, Holding & Masten; Mr. Ellis G. Kinkead and Messrs. Seney & Johnson, for plaintiffs in error.. Mr. C. B. Matthews and Mr. Miller Outcalt, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew, Summers and Spear, JJ., concur.


text:
    No. 9719.
    Groot v. Osgood, Revived in Name of Little, Exrx.,
    Decided March 26, 1907.
    Error to Circuit Court of Cuyahoga county.

      Mr. George A. Groot and Mr. 0. S. Ferris, for plaintiff in error. Mr. J. F. Wilson, for defendant in error.-
   Judgment affirmed.»

Shauck, C. J., Crew, Súmmers, Spear and Davis, JJ., concur.


text:
    No. 9723.
    Groot v. Osgood, Revived in Name of Little, Exrx.
    Decided March 26, 1907.
    Error to Circuit Court of Cuyahoga county.

      'Mr. George A. Groot and Mr. O. S. Ferris, for plaintiff in error. Mr. J. F. Wilson for defendant in-error.
   Judgment affirmed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 9739.
    Fleming, Admx., v. The Cleveland, Cincinnati, Chicago & St. Louis Ry., Co.
    Decided- March 26, 1907.
    Error to Circuit Court of Morrow county.

      Messrs. Mitchell & Bruce and Mr. J. W. Barry, for plaintiff in error.. Messrs. Cummings, McBride .& Wolfe and Mr. Benj\ Olds, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Crew, Summers and Davis, JJ., concur..


text:
    No. 9748.
    The Salem Iron Co. v. Miller.
    Decided March 26, 1907.
    Error to Circuit Court of Cuyahoga county.

      Mr. N. B. Billingsley and Messrs. Kline, Tolies & Goff, for plaintiff in error. Messrs. Gouldner, Holding & Masten, for defendant in error.
    Judgment reversed.. Grounds stated in journal entry.
   It is ordered and adjudged by this court that the judgment of said circuit court be, and the same hereby is, reversed, and this court proceeding to render the judgment which said circuit court should have rendered, it is ordered and adjudged that the judgment of said court of common pleas be, and the same hereby is, reversed upon the ground that the original petition in said cause states a cause of action and the issues which it tenders were not adjudicated in the District Court of Pennsylvania.

Shauck, C. J.,. Price, 'Crew, Summers arid Spear, JJ., concur.


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    No. 9810.
    Berry v. The State of Ohio.
    Decided March 26, 1907.
    Error to Circuit Court of Greene county.

      Mr. H. C. Armstrong, for plaintiff in error. Mr. Charles F. Howard, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.


text:
    No. 9829.
    Beck v. The Board of Education of Rocky River Village School District.
    Decided March 26, 1907.
    Error to Circuit Court of Cuyahoga county.

      Mr. P. H. Kaiser, for plaintiff in error. Mr. D. T. Miller, for defendant in error.
   Judgment affirmed.

Price, Summers and Davis, JJ., concur.