source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Webster v. The State.
    Practice— Criminal law — Suspension of sentence.

    1. In a criminal case pending on error in the circuit court, this court has no power, under the constitution, to hear and determine a motion to suspend the execution of sentence. Kent v. Mahaffy, 2 Ohio St. 498; P. Ft. W. & C. R. Co. v. Hurd, 11 Ohio St. 144
    2. The circuit court has such power.
    Motion to suspend sentence.

      J. B. Burrows, for plaintiff in error»

      ■James Lawrence, attorney-general, for the state.
   Johnson, J.

Webster was convicted by the court of common pleas of Trumbull county, at the June term thereof, 1885, of murder in the first degree, and sentenced to be hanged February 5, 1886. November 11, 1885, he filed a' petition in error in the circuit court of said county to reverse the judgment of the court below.

The first term of the circuit court at which said case can be heard begins April 27, 1886, some two months after the date fixed for his execution. He moved the circuit court for a suspension of sentence until his case can be passed upon by that court. This motion was refused on the ground that said court had no jurisdiction to hear the motion or make any valid order in the premises.

Application is now made for such suspension by this court. As the case is now pending iu^the circuit court, this court can not, under the provisions of the constitution, entertain jurisdiction to consider the same. Kent v. Mahaffy, 2 Ohio St. 498; P. Ft. W. & C. R. Co. v. Hurd, 17 Ohio St. 144. The reasons there given for this holding need not be restated. It follows therefore that unless the circuit court has jurisdiction to suspend sentence until the ease can be heard, the plaintiff in error must be hanged before his case can'be heard upon error, uuless the governor grants a suspension.

The claim made by the circuit court is, that the power which always existed under the criminal practice acts for the judges or court hearing the error case to suspend sentence until final hearing of a capital case, has been repealed by implication- by the act of April 29, 1885 (82 Ohio L. 169, 170), which amended section 7343 of the Revised Statutes. That section provided, that “unless a suspension of execution be ordered by the supreme court, or two judges thereof, the sheriff shall proceed at the time and place named in the warrant to cause the person sentenced to be hanged by the neck until he be dead,” etc.

This section as amended is exactly the same in this respect except the words, “ or coroner,” inserted after the word “ sheriff” in the former section. Both sections relate to the execution of the death sentence. The power of the circuit court is not derived from these sections. It is conceded that the circuit court and its predecessor, the district court, and its predecessor, the supreme court, had, prior to the act oí April 29,1885, power to suspend sentence in such cases pending before it. But it is claimed that as the amended section 7343 provided for the execution oftbe death sentence, unless suspended “by the supreme court or two judges thereof,” is later in date than the act of April 18, 1883, or its amendments, which conferred upon the district court and circuit court, the power to review any criminal case and suspend sentence, that the statutes authorizing a suspension of sentence until the case can be heard (80 Ohio L. 170), are repealed by implication by the amendment to section 7343 (82 Ohio L. 170).

Repeals by implication are not favored, especially since the adoption of our present constitution, wherein ft is provided that .no act shall be amended unless, the new act contains the entire act revived, or the section or sections amended; and the section or sections so amended shall be repealed.

In this case the act of April 29,1885, does not amend the section or sections relating to the power of the district or circuit court to suspend sentence, but the section relating to the mode of the execution of death sentences is left unaffected.

A brief history of the legislation upon this subject will show that section 7343 was not intended either to confer power or to limit the power of the district and circuit courts, but was simply directed to the mode and manner in which sheriffs and coroners should execute the death sentence, and was neither a repeal expressly, or by implication, of the powers of the court conferred by sec» tion 7356, as amended February 7, 1885 (82 Ohio L. 39). By the act of March ‘7,1835, S. & C. 417, sec. 40, of the act providing that the punishment of the death senten ce shall in all cases be by hanging by the neck until dead, by the sheriff. This permitted public executions. These were abolished March 12,1844, S. & C. 1191, which was amended by the act of February 16, 1846, S. & C. 1191, 1192; Thereafter all executions were required to be had in pri-< vate. Up to this date the legislation directing the mode of execution of the death sentence did not contain the words found in the amendment of section 7343 “unless the suspension of execution be ordered by the supreme court or two judges thereof.”' Though the acts of 1835,. 1844, and 1846 contained no such clause, it was always understood that if the court hearing the case did, as it had power to do, suspend the execution of sentence, the sheriff could not, in the face of an order of suspension, violate such order and proceed to the execution before the final hearing of the case on error. By the act of March 9, 1866, entitled an act prescribing the duties of the clerk and sheriff in carrying into execution the death sentence, this phrase “the supreme court or two judges thereof,” was first introduced. Swan & Sayler, 616. By the second section of that act, which is equivalent to section 7343, it was provided: “ That it shall be the duty of said sheriff on receipt of said warrant, provided the supreme court or two judges thereof have not ordered the suspension of the execution of said sentence,” to proceed to execute the sentence; and in section 3 of the same act it is provided that in case the “supreme court or two .judges thereof,” have allowed a writ of error and suspension of sentence until the case could be heard, and fixed a day for the execution of the death sentence, it shall be the duty of the sheriff to so execute it at the time fixed by said court.

At the time of the passing of this act of 1866 there was no supreme court in existence, within the meaning of the phrases there used. The supreme court was long before abolished, and the district court had succeeded it. Schedule of the constitution of 1851, section 12, provided that this court was to be the successor of the supreme court in bank, and that the district court should be the successor of the supreme court. The supreme court in bank meant the sessions of the court at the capitol, composed of all the four judges of the state, and the words, supreme court meant the sessions held in the several counties' by two of the judges of the supreme court in bank. Hence, by section 6 of the act of April 30, 1852, relating to the organization of courts (S. & O. 383), it was among other things provided that “all the laws regulating the practice of, . . . or granting powers to the supreme court, or any judge thereof, and the courts of common pleas or any judge thereof, respectively, under the former constitution . . . except as to the matters of probate jurisdiction . . . shall govern the practice of and impose like duties upon the district courts and courts of common pleas . . .”

Thus the words “ district court ” are made the equivalent in meaning to the words “ supreme court,” and wherever the words “ supreme court or any two judges thereof” were found in the statutes then existing they were equivalent to the words district court. Thus in “an act to allow writs of error in criminal cases,” passed March 7,1831, S. & O. 1187, it was provided: “that’in criminal cases,not punishable with death, writs of error may, on good cause shown, be allowed on the application of the defendant, by the supreme court, or any judge thereof in vacation, as in civil cases; and in criminal cases punishable with death, writs of error may be allowed on a like application, by said court when in session, in open court, or by any two judges in vacation.” And when so allowed in a capital case, the judges or court “ shall order a suspension of execution until such writ of error shall be heard and determined.”

This act of 1831 remained in full force until repealed by the act of May 6,1869 (66 Ohio L. 287-324), being the code of criminal procedure. Thus from 1851 until 1869 the words “supreme court or any two judges thereof,” found in the act of 1831, above quoted, meant and was to be read as “ district court or any two judges thereof.”

When the act of 1866, relating to the mode of executing death sentences, used these words, “ supreme court or any two judges thereof,” their legal meaning was, “ the district court or any two judges thereof,” and hence also the use of these words in the act of 1866 should read “ district court or any two judges thereof.” The presumption is that the legislature borrowed from the act of 1831, then in force, literally, instead of the legal meaning of the words. Such was the construction of these words in the act of 1866, and the amendment of last winter has not changed this meaning. It can not be presumed that when so used it was intended to repeal by implication their legal meaning in the act of 1831. The statutes in pari materia must be construed together; when so construed the words, “ supreme court or any two judges thereof,” meant the “district court or any two judges thereof.” The subsequent amendments of the act of 1866, found in the revision, and in the amendment to section 7343, have the same legal ■ meaning., When so read they are in harmony with the criminal procedure act, and make it the duty of the sheriff or coroner to execute the death sentence, unless sentence is suspended by the district court while in existence, or its successor, the circuit court, or any two judges thereof.

It is only when there is an irreconcilable repugnancy that the later statute repeals a former. There is no such repugnancy here. The amendment of section 7343 has the same meaning as it had when it took effect in 1866. It was never intended to divest the court allowing a writ of the power to suspend sentence, otherwise we would have the anomaly of hanging a man first and then hear the error case afterward.

The intention of these several acts is manifest, and where this is so courts are not to be confined to the letter of the law. Qui hceret in litera, hceret in cortice. Potter’s Dwarris, 144.

Motion overruled.


author: Spear, J.

text:
    The State ex rel. Belford v. Hueston.

      Statutory construction — Meaning of term “ senior judge ” in act of April 7, 1882.
    1. The term “senior judge” in the act of April 7,1882 (79 Ohio L. 79), providing for the appointment of an assistant prosecuting attorney in Lucas county, is intended to designate the judge who, at the time of such appointment, has served the longest under his present commission.
    2. Hence, where an assistant prosecuting attorney had been appointed October 9, 1885, by a judge, resident of Lucas county, whose existing term of office commenced November 11, 1883, and had qualified and entered upon the discharge of the duties of the office, an appointment November 3, 1885, by a judge whose existing term of office commenced February 9, 1885, was inoperative, although the judge making the latter appointment had been judge under former commissions, and had been longest in continuous service.
    QUO WARRANTO.
    The facts appear in the opinion.

      James Lawrence, attorney-general, and Doyle $ Scott, for relator.

      Kent Sf Kent, for defendant.
   Spear, J.

By this proceeding the defendant, James M. Hneston, is called upon to show by what authority he assumes to hold the office of assistant prosecuting attorney for the county of Lucas.

The act of April 2,1882 (79 Ohio L. 79), provides for the appointment of assistant prosecuting attorneys in the counties of Hamilton, Cuyahoga, and Lucas. In the first named county, the presiding judge is given the power to appoint, in the second named, the judges of the court of common pleas are given that power, and in the last named (Lucas), the provision is that “ in Lucas county the senior judge of the court of common pleas residing therein, may ■appoint an assistant prosecuting attorney.”

The relator claims the office of assistant prosecuting attorney by appointment October 9, 1885, by one of the resident judges of Lucas county; the defendant claims the same office by appointment November 3, 1885, by another resident judge of said county.

The question is, which of the two judges thus assuming to ¡appoint an assistant prosecuting attorney was the “ senior judge?”

The facts in the ease are agreed upon, and, in so far as they are deemed material, are as follows: At the dates of the two appointments named there were three judges of the court of common pleas residing in the county of Lucas, one who was elected in October, 1883, and entered upon a full term of five years from November 11, following; another who was elected in October, 1884, and entered upon a full term of five years on the 24th of that ■¡month, and a third elected at the same election, and who 'entered upon a full term of five years on the 9th day of February, 1885. On the 9th day of October, 1885, the judge whose term commenced November 11, 1883, appointed the relator, Irvin Belford, as assistant prosecuting attorney. The relator immediately took the oath of office, entered upon the discharge of the duties, and continued uninterruptedly until the 3d day of November, 1885, on which day the judge who entered npon his present term February 9, 1885, holding, at the time the criminal term, refused to recognize the relator, and appointed the defendant to that office, who at once took the oath of office, and entered upon the discharge of the duties of such assistant in that court. The judge who made this last appointment was, at the time, the judge longest in continuous service, having entered upon his first term February 9, 1875, upon his second term February 9, 1880, and upon his present term February 9, 1885, having served continuously during the time, and all of the time residing in Lucas county. The first act authorizing an assistant prosecuting attorney for Lucas county was passed May 11,1878. Appointments were made under this law, but they are not understood to be of consequence here. April 2, 1880, the law was amended, giving the appointment of assistant to the prosecuting attorney himself. That law remained in force until April 7, 1882, when the present law took its place. At the time of this last change there were three judges resident in Lucas county, one whose term began November, 1878, one whose term began November, 1879, and one whose term began February, 1880, the latter being the same judge, serving his second term, who made the appointment of defendant November 3, 1885. The first appointee under this law was the defendant, Hu esto n. He was appointed October, 1882, by the judge who commenced his first term November, 1878, and the appointment was acquiesced in by everybody. Again, in October, 1883, the same judge appointed the same gentleman, and again everybody acquiesced. In October, 1884 (the term of the judge who made the previous appointments having expired), the defendant was appointed by the judge who made the appointment November 3,1885. The defendant served one year under that appointment, and there was a vacancy in. the office at the time of the appointment of the relator, October 9, 1885.

Whether the act of the judge making the last appointment of the defendant; considering that the relator was at the time an officer de facto, in possession of the office, and performing its duties, was or was not valid, irrespective of-the question of who was the senior judge, we are not called upon to determine, because the relator prefers to waive that point and rest his case upon the claim that his appointment was made by the judge who at the time ivas the senior judge of Lucas county.

The question to be determined is, whether the senior judge was the one who had served longest under his present commission, or the one who had been longest in continuous service? It is not insisted by any one that the word “ senior” applies necessarily to the judge who is oldest In years. Iudeed we are not advised as to the age of the several judges.

On the part of the defendant the contention is that “ senior judge ” is one longest in continuous service ; this because, neither by the constitution nor by statute, is any distinction made between common pleas judges, nor any power vested in one that is not in all; that the word “ senior” has no technical legal significance, and that the popular definition in common use, and as given by lexicographers, to wit: “one that is older in office, or one whose first entrance upon an office was anterior to that of another,” must prevail.

On the part of the relator the contention is, that “ senior judge” means the oldest in commission ; this because, first, the words have a technical meaning in Ohio legislation, given to them by the history, custom, and uniformity of legislation of the state in reference to the judiciary; second, adopting the word senior as commonly defined, or given by lexicographers, “ elder” or “ eldest” as applied to the service of judges in Ohio, it will mean the same thing ; and third, that this construction is the one given to the word by contemporaneous local interpretation, and, being a local Ihw, such mode of arriving at its meaning is the best method, and is controlling.

We ai'e of opinion that the term “senior judge” in this statute applies to the judge who, at the time an appointment of assistant prosecuting attorney is to be made, has served the longest under his present commission, and will endeavor to state some considerations which lead to that conclusion. This becomes an easy task by reason of the aid derived from the oral arguments and briefs of counsel, supplemented by the brief of defendant in person. The case is one of first impression in this state, and has been reasoned out upon principle by the counsel. The reasoning in support of the relator’s position upon what we regard as the controlling point in the case, is so satisfactory, that we are content to adopt it in substance in treating of that question.

The question is not necessarily what that term means by its general use, nor what it means in legal parlance out of Ohio, but what it means here in this state, and in this statute. We are, if we can, to ascertain what the legislature intended by its use in this law. For, “ while the popular or received import of words furnishes a general rule for the interpretation of statutes, they must be interpreted according to the intent and meaning, and not always according to the letter; and where the intent can be discovered, it should be followed, though such construction seem contrary to the letter of the statute.”

The word “senior” has not received interpretation, so far as known, judicially in this state, and the only other use of the word in our legislation that is recalled is in section 8054 of the Revised Statutes, wherein it is provided that “ the command of any military force called into service under the provisions of this title shall devolve upon the senior officer of such force; ” section 8048, providing that “ an officer who has served continuously in the same grade for more than one term, . . . shall take rank from the date of his first commission in that grade.” This statute applies to the military organization of the state only. And though it be assumed that by the word “ senior” here is meant the one longest in continuous service, it by no means follows that the legislature, in usiug the word in connection with an entirely different subject-matter, intended it should have the same meaning. In the one case it would naturally be inferred that the term would follow military usage, while in the other its meaning would be gathered from practice in civil affairs, and especially in affairs connected with the judiciary.

Reference to the definitions given by lexicographers scarcely aids in getting at the meaning of the word “senior” in this statute, for it is hardly probable that the legislature gave much attention to the study of etymology in the adoption of the word, or to the definition given in the dictionaries. The meaning is given by Webster, as adjective, “ one more advanced in life; one older in office or dignity; prior in age or rank; elder; ” and as noun, “ one older in office, or whose entrance upon an office was anterior to that of another.” Taking this language alone, it may be construed to mean, not one who entered upon his present term'of office first, but one who has been longest in the office. But no meaning of a word which has received a construction, by law or uniform custom, can be adopted from the dictionaries in conflict with that construction. And where a word is reconcilable with law or established custom in the particular manner in which it is used, a different meaning can not be given to it upon the authority of a lexicographer. Hence, if we can ascertain that this word has a meaning in Ohio in reference to the judiciary, understood by custom and the provisions of the law relatlating to courts, it is reasonable to assume that the legislature made use of it intending it should receive that meaning in any construction of the law. ■

It is believed that neither in our present constitution nor laws is importance attached to the length of service of a judge beyond that of his existing term ; but every-where, in the debates in the convention which framed the constitution of 1851, and in legislation following its adoption, the ranking judge, or chief-justice, however designated, was he whose term of service, not holding by appointment or to fill a vacancy, would soonest expire.

Looking back to see how the subject was treated .prior to the date mentioned, we find that the general assembly which met immediately after the adoption of the constitution of. 1802 (which instrument created the supreme court to consist of three judges, with power to the assembly to add another), by act of April 15,1803, entitled “ an act organizing the judicial courts,”- provided that one of the judges of the supreme court “shall be commissioned by the governor chief judge of said court, and the other two judges, and all future judges of said court, shall have precedence according to the date of their commissions, or where their commissions are of the same date, then according to their respective ages.” As to the common pleas courts, the constitution created them each to consist of a president and associate judges. An act amending the previous statutes on the subject of courts, passed February 16,1810, provided that the judges of the supreme court, ‘ shall have precedence according to the date of their commissions, or .where their commissions are of same date, then according to their respective ages; and the judge entitled to precedence shall be styled chief judge of said court.” This remained unchanged until the act of February 18,1824, in which the idea of precedence by reason of continuous service was first recognized, the act providing that the four judges shall have precedence according to the dates of their commissions, but in case either shall be elected for two or more terms in succession, then he shall take precedence according to the date of his first commission, etc. These provisions were again embodied in the act of February 7,1831, and remained in force until the law was abrogated by the adoption of the constitution of 1851. And, thus having before them the earlier and the later policy on the subject, and having the question of precedence in the supreme court to provide for, the legislators of the assembly of 1852 discarded the later and returned to the earlier policy, providing in the act relating to the'organization of courts of justice, and prescribing their powers and duties, passed February 19, 1852, substantially what is now embodied in sectiou 411, Revised Statutes, that “the judge of the supreme court having the shortest time to serve, not holding by appointment or election to fill a vacancy, shall be the chief justice, and as such shall preside at all terms of the supreme court; and in case of his absence, the judge having in like manner the next shortest time to serve shall preside in his stead.”

This change by the legislature is significant, and the purpose is clear ; to give no dignity or importance to length of service merely, but to determine rank wholly by the length of service under the present authority or term of office. So, too, with the circuit court. Section 4516 (81 Ohio L. 170), makes precisely the same provision as to a presiding judge in that court. No direct legislative provision is made as to precedence among judges of the courts of common pleas. A sufficient reason for this omission is found in the fact that the court is held by one judge only, and, therefore, each judge is a presiding judge. The law in this respect can scarcely be regarded as throwing light upon the question one way or the other.

In passing, we may refer to section 848 of the Revised Statutes, regarding county commissioners, which provides that the one whose term first expires shall be president, and shall preside at the meetings of the board.

In Ohio the term of a judge is fixed, determined. As to judges of the supreme court, and court of common pleas, it is five years, as to the circuit court it is six years, and as to the probate court three years. The term of the common pleas judge is made five years by the constitution itself. There is no such thing as holding over; no provision is made that the incumbent (when elected) shall continue until his successor is elected and qualified, and if there is a failure to elect, the office is vacant. For every purpose the judge goes out at the expiration of the fixed term; if he is a judge after that, it is because of a new election and qualification, and he is just as much a new judge as though he had succeeded another. One term can not be tacked upon another for the purpose of adding to rank, title, power or pay. And with this view the term “ elder in office” seems reconcilable with the idea simply of being elder in office under his present title to his office. Sections 555 and 556 make it the duty of one elected to a judicial office, withiu twenty days after receiving his commission, to take the oath required by the constitution and laws of the state, and transmit a copy of such oath to the clerk, and when he does not so qualify and transmit, he shall be deemed to have refused the office, and it shall be considered vacant. One whose former term has just expired, or is about expiring, is not exempted from the requirements of this statute. He is just as much bound to qualify in the manner provided as a new man would be, and if he fails in that he fails in his office. No power remains in his hands beyond the one term by reason of the authority given, and as to power beyond that it depends wholly upon the new lease, upon the new election, and the new qualification. This is the policy of our constitution, and our law, and the legislature must be held to have framed this statute in the light of these provisions, and of this policy.

Again, it can hardly be assumed that the legislature intended to place, and to continue the duty of appointment upon any one man. It could not be presumed by that body that any judge would be continued beyond his present term, and his successor would be junior to those of his associates whose terms expired at an earlier date. And in such case the change in the personnel of the judges would of necessity change the seniority, no two of the commissions bearing the same date.

The opinion of the justices to the governor and council, 126 Mass. 603, was cited by counsel for defendant. The opinion quotes from the Massachusetts statute : “ Whenever a vacancy occurs in the office of sheriff in any county, the senior deputy sheriff in service shall perform all the duties required by law to be performed by the sheriff, until the office is filled in the manner required by law.” In the opinion the court say, that the legislature hag, by the use of the words “senior deputy sheriff in service” designated the one who has been longest in office continuously. How the deputies were appointed is not shown to us, nor is it shown whether they continued under their original appointment until removed, or their appointment died with their principal, and they were reappointed with each new sheriff. The use by the legislature of the words “in service ” would imply that standing alone the word “ senior” would not mean oldest in service; if the word “senior” alone implied longest in continuous service, then the words “in service” would be clearly superfluous, and we are not swift to charge the general court of Massachusetts with embodying words in the statutes which have no meaning. In the language of Judge Thurman, in Bloom v. Richards, 2 Ohio St. 402, “ mere idle and useless repetitions of meaning are not to be supposed, if it can be fairly avoided.”

But though this opinion be as strong for the defendant as 'is claimed, yet while considering the weight to be given to it, we should keep in mind that in Massachusetts the policy of the law has been from colonial days, and is now in large measure, to continue men in office for long periods; the courts are supplied with judges for life, and in many respects the reverse of the Ohio policy is favored there. This is believed to be true of the state of Connecticut and of others of the older states.

If it were profitable to look outside of our own state to find precedents, the research of counsel has supplied us with a long line, in which, in some cases the fundamental law, and in others the statutes, embody the same policy as is shown by the provision of our law as to rank in the supreme and circuit courts.

The law of Nevada provides that the senior justice in commission shall be chief justice, and in case the commission of any two bear the same date, they are to determine by lot who shall be chief justice. In Kentucky the constitution provides that the judge having the shortest time to serve shall be styled the chief justice of Kentucky. Sirailar provisions are found in Oregon, Michigan, Georgia, West Virginia, Mississippi, Missouri, California and Nebraska, while in nineteen states there is no provision for the selection of a chief justice, no such officer seeming to be known to the law, and in the remaining states the matter is either determined by the governor, who appoints the judges, or by the legislature which elects them, or the choice is made by the court itself. In the newer states of the west and south, the policy of short, determinate terms is favored, while in many of the older Atlantic states the policy of priority by reason of service is recognized and encouraged. In our judgment the policy of Ohio is clearly in accord with that of the former class of states, and in the light of this policy, and of the custom which has grown up under it, we think the language of the law in question should be construed.

And whatever of respect and deference may be justly due to long experience and honorable service on the bench, such considerations can not, as we think, be dignified into a claim of rank by right, and thus outweigh the clear policy of the law.

We are not impressed with the conelusiveness of the claimed local construction of the law, based upon the apparent recognition by the judges of Lucas county,'and the defendant in this case, of the validity of the appointments made October, 1882, and October, 1883, both of which were made by a judge who assumed to be the senior judge because he held by what was, at the time, the oldest commission, while another judge — the one who made the appointment of the defendant in this case — had been many years the longest in continuous service. The point is not without significance, but had those appointments been made by the judge then longest in continuous service, and thus an exactly opposite local construction given to the law, we would hardly be willing to hold that such construction should-prevail as against satisfactory reasons for a contrary view. The statute of 1882 can not be treated as an ancient one in such sort that the opinion of sages learned in the law at the time of its passage would be binding upon courts in this year of grace, 1886, nor is the claim of contemporaneous local construction aided by the doctrine of stare decisis, no rule of or right to property having obtained, and surely not by the application of any rule of estoppel. However, the fact that the local construction, so far as one had been given prior to the last appointment, favors the claim of the relator, is an additional assurance that the conclusion we have reached does no substantial injustice.

But, however impressed with the significance of local construction, we can not rest our decision upou that. "We prefer, rather, the other ground. In consonance with history and legislation, and with custom in the state, and by analogy with the rule as to precedence furnished by law for the supreme and circuit courts, the term “ senior judge ” in this statute means the judge who has served the longest under his present commission.

Judgment of ouster.


text:
    Seymour v. Railway Company.

      Buie day — Filing demurrer aftei — Statute of limitations — Question raised by demurrer — Injury to animals by railroads — When action for barred.

    1. Where a demurrer is filed to a petition, after rule day for filing the same and the plaintiff makes no objection thereto, but submits the case to final judgment upon the demurrer, it is too late, on error, to object to such filing.
    2. Where the petition on its face shows a cause of action which is barred by the statute of limitations, no legal cause of action is stated, and a demurrer thereto, on the ground that the petition does not state facts sufficient to constitute a cause of action, raises the question of the statute of limitations as well as other defects in the petition, though the better practice undoubtedly is, to specifically state in the demurrer that the cause of action is barred.

      3. An action against a railroad company to recover damages for killing or injuring a domestic animal which had strayed upon its track, and was killed or injured without fault or negligence of the railroad company in operating its train, but solely by the neglect te fence the road as required by law, is founded upon “a liability created by statute, other than a forfeiture or penalty,” and is barred in six years.
    Error to the District Court of Licking county.
    The facts are stated in the opinion.

      Charles A. Montgomery, for plaintiff in error.
    I. The defense of the statute -of limitations was not properly interposed. The demurrer, by which the question was attempted to be raised, was filed, without leave, out of rule. It was general in form, and did not specify the statute as a ground of demurrer.
    The defense of the statute of limitations is inequitable and not favored. It must be specially relied upon. It is not permitted to be interposed after rule day. Vose v. Woodford, 29 Ohio St. 245; Sheets v. Baldwin, 12 Ohio, 132; Wall v. Wall, 2 Har. & Gill (Md.), 79; State v. Green, 4 Gill & Johns. (Md.) 381; Jackson v. Varick, 2 Wend. 294; Beach v. Fulton Bank, 3 Wend. 574; Perkins v. Turner, 1 Har. & McH. (Md.) 400; Perkins v. Burbank, 2 Mass. 81; McKinney v. McKinney, 8 Ohio St. 423; Towsley v. Moore, 30 Ohio St. 195; Newsom v. Ran, 18 Ohio, 245, 246.
    II. This being an action, brought under the statute, against a railroad company to recover damages for killing an animal by reason of its failure to properly construct and maintain fences and cattle guards along the line of its road, is founded upon “ a liability created by statute other than a forfeiture or penalty,” and, under section 4981 of the Revised Statutes, is barred in six years.
    The act of April 18, 1874 (71 Ohio L. 85), which provides that railroad companies shall be liable for all damages sustained by reason of failure to comply with the requirements of the act with respect to fencing and cattle guards, is not merely a declaratory statute, but remedial in its nature. It introduces new obligations, definitely fixes the requirements to be complied with, creates the liability consequent upon the failure to perform these requirements, and provides the remedy by which such liability niay be enforced.
    The liability created by the statute did not exist at common law. Kerwhaker v. Cleveland, C. & C. R. Co., 3 Ohio St. 172; Cleveland, C. & C. R. Co. v. Elliott, 4 Ohio St. 474; Balt. & Ohio R. Co. v. Wilson, 31 Ohio St. 555, 560; Corwin v. New York & Erie R. Co., 13 N. Y. 42.

      J. Dunbar, for defendant in error.

    This is an action for injuring personal property, and, under section 4982 of the Revised Statutes, is barred in four years.
    No objection was interposed below to the filing of the demurrer out of rule. It is too late to make the objection now.
   Johnson, J.

This is an action brought against the Pitts-burg, Cincinnati and St. Louis Railway Company, under the statute, as amended April 18, 1874 (71 Ohio L. 83), for the recovery of damages for the killing of domestic animals by reason of the want and insufficiency of fence and cattle guards along the line of defendant’s railroad.

The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained and final judgment rendered against the plaintiff. The question before the court below was whether the limitation of four or six years barred the action; and also, whether the demurrer was the proper way to raise the question.

The plaintiff contends that the only proper way to plead the statute of limitations is by demurrer specially stating that the statute is a bar, or by answer.

1. There is another question which does not appear to have been made in the court of common pleas, which is assigned for error here. It is said that this demurrer was filed out of rules and without leave of court, and therefore should not be used to raise the question of the statute of limitations, because the plea of such statute is unconscionable, and should not be pleaded after default.

This demurrer was filed November 13, 1879, and was heard October 27, 1881, nearly two years thereafter. No objection was interposed during all this time by the plaintiff, though it appears that the issue presented was on the latter day “ argued by counsel,” when the demurrer was adjudged well taken and final judgment, rendered. Had the point been presented to the court on a motion to strike out the objectionable pleading as being filed out of rules and not with leave, and the court had overruled that motion, error might have been assigned to that ruling if it was erroneous. But no objection was then made, and as the parties argued and submitted the case upon the demurrer, it is too late now to object after final judgment that the demurrer was not filed within rules. The point was not made in the court below, so far as appears by the record, and therefore is not assignable as error.

2. It is claimed that in order that the plaintiff should have the benefit of the statute of limitations he should insist upon it as a bar in his answer or as a specific ground of demurrer. McKinney v. McKinney, 8 Ohio St. 423, is relied on to support this position. That was an action to recover real property, and for damages for being kept out of possession. The petition -was for damages and for nineteen years rent. The defendant answered, without claiming the benefit of the statute in his answer, or by demurrer. In the opinion, Swan, C. J., says: “We have already held, at the present term of this court, that where the petition on its face discloses that the cause of action is barred, the defendant may, by demurrer, specify that the petition shows a cause of action barred by the statute.”

The court then holds that as the defendant had answered, denying the allegations of the petition, he could not, on the trial, insist on the bar of the statute, and that in order to avail himself of that defense he should have set it up in his answer or rely on it as specific ground of demurrer.

The case to which Judge Swan refers as “ decided at the same term,” is Sturges v. Burton, 8 Ohio St. 215. The third syllabus reads : “Where it appears, on the face of the petition, that the cause of action accrued at such a period, that, under the statute of limitations, no action can be brought, the defendant may demur to the petition, on the ground that the petition does not state facts sufficient to constitute a cause of action. But if the objection does not appear on the face of the petition, and the answer does not set up the limitation, it must be deemed waived.” In the opinion it is said, “ Where the cause of action appears, upon the face of the petition, to be barred, there is, in law, no cause of action alleged; and in analogy with the practice in chancery we see no objection, in such a case, to the defendant interposing a demurrer, under the code. He may either demur in such case, or answer by setting up the bar. If he neither demurs nor sets up the bar in his answer, he waives it.”

By a “ demurrer under the code” is meant the eighth clause of section 5062 of the Revised Statutes, which authorizes demurrer on the ground that “ the petition does not state facts sufficient to constitute a cause of action.”

Section 5068 requires that the demurrer shall specify the grounds of objection, and unless it does so, it shall be regarded as objecting only that the petition does not state facts sufficient, or that the court has no jurisdiction.

A demurrer under this eighth clause need not specify the defects of the petition. It is sufficient to follow the words of the statute, though the better practice would be to point out these defects in writing, and not leave them to be specified, orally.

Commissioners of Delaware County v. Andrews, 18 Ohio St. 49, 67, is exactly like the case at bar. There the demurrer was on the ground that the petition “ does not state facts sufficient to constitute a good cause of action in favor of the plaintiff and against the defendants; ” and it was held not error to sustain such a demurrer where the petition showed that the ' right to recovery was barred by the statute. Keithler v. Foster, 22 Ohio St. 27.

Vose v. Woodford, 29 Ohio St. 245, was also like the present case, where the demurrer was in the language of the statute, that the petition did not state facts, etc. The syllabus reads, Since the adoption of the code, as before it, the bar of the statute of limitations must be pleaded, otherwise it is waived. But since the code the bar may be insisted on by demurrer, when it appears upon the face of the pleading demurred to that the time of the statute has run against the cause of action therein stated.” This was said of a demurrer like the one before us.

In the opinion it is said, referring to Sturges v. Burton, that the bar of the statute may be insisted upon by a demurrer, and that “ when the bar of the statute is thus pleaded by a demurrer, it would unquestionably be the better practice to state the ground of demurrer specifically; but, without holding that such specific statement is necessary, it is quite clear that if the statute be not pleaded by answer or demurrer in a proper case, the defense of the statute is to be regarded as waived.”

In Combs v. Watson, 32 Ohio 228, there was a demurrer, on the ground that the petition did not state facts sufficient to constitute a cause of action. It was held sufficient as a plea of the statute of limitations. Other cases might be cited, but these are deemed sufficient.

3. As this petition on its face showed that the cause of action accrued more than four years and less than six yeai's before the commencement of the action, the question is fairly presented whether the court below erred in holding that it was barred by the four years limitation. We think it did err.

Subdivision 3, Chap. 2, Div. 2, Tit. I, Part Third, of the Revised Statutes, relates to civil actions other than for the recovery of real property. Section 4981 of the Revised Statutes limits actions upon contract not in writing, express or implied, and actions opon a “ liability created by statute, other than a forfeiture or penalty,” to six years.

Section 4982 limits actions of trespass, the recovery of personal property, the injury to the same, or to the rights of plaintiff, not arising on contract, etc., to four years from the time the right of action accrues.

This section relates to actions ex delicto and for frauds, as distinguished from actions ex contractu. All causes of action for wrongful act', neglect, or default, not otherwise provided for, are barred in four years; while under section 4981, all causes of action arising on verbal contracts, express or implied, and all causes of action where the liability is created by statute, are barred in six years.

This is a liability created by statute. Without the statute such an action could not be maintained.

Section 4981 relates to two classes of obligations. 1. Contracts not in writing, express or implied. 2. Liabilities created by statute other than a forfeiture or penalty.

Section 4982 relates to what was formerly known as actions ex delicto, and to'actions on the ground of fraud.

This is not an action for injuring personal property arising by reason of the wrongful act, neglect, or default of defendant, nor is it au action for the injury to the rights ■of the plaintiff by reason of such wrongful act, neglect, or default.

The petition alleges as a ground of recovery the killing of a domestic animal, by reason solely of defendant’s omission to construct and keep in good repair good and sufficient fences aud cattle guards to turn stock along the line of its road by reason of which neglect and omission the plaintiff’s mare without his fault was run over and killed. The-statute (71 Ohio. L. 85) provides that in case of such failure and neglect, every railroad “ shall be liable for all damages sustained in person or property in any manner, iby reason of the want or insufficiency of any such fence, crossing, or cattle guaid, or any carelessness or neglect of said company, their agent or agents in constructing and keeping the same in repair,” etc.

This is a liability created by statute. Without such a statute the eompauy was not bound to fence its road, nor was it liable for a mere failure to fence. Ey the common law it is liable for wrongfully or negligently managing its trains so as to cause injury to person or property, and for such injury the action is barred in four years. As the petition does not charge any common law liability, that limitation can not be applied to this case. These two sections must be construed together, so as to give each force. If we should say that this canse of action came under 4982, we would be compelled to hold that it was not a liability created by statute, or that both four and six years applied to it, but by holding as we do that section 4982 applies to injuries and wrongs to person or property other than those to perform a statutory duty, we give force and effect to both sections. This _ statute requiring railroads to be fenced, and making them liable for damages to persoual property by reason of such failure, creates a statutory liability which is barred in six years While section 4982 is given full force by limiting it to common law liabilities for wrongful act, neglect, or default, such a construction harmonizes and gives full force to both sections.

Judgment reversed.


author: Follett, J.

text:
    Insurance Company v. Pyle.

      Life insurance policy — Construction—TJntrue answers in application — Policy void ab initio— When premium may be recovered bach.

    1. Tlie provisions of a life insurance policy are construed and applied like the terms of any other contract, and such provisions may render the policy void, ab initio, by the terms of the same and the failure of warranty.
    2. When a life policy is issued and accepted upon the expressed condition that the answers and statements of the application are warranted true in all respects, and that if the policy be obtained by any untrue answer or statement, or by any fraud, misrepresentation, or concealment, “ the policy shall be absolutely null and void;” and, as to matters material to the risk, some of the answers and statements are untrue in fact, though made without actual fraud and under an innocent misapprehension of the purport of the questions and answers, no contract of insurance is thereby made, and the policy does not attach, but it is void ab initio.

    3. When, for such a policy, premium has been paid by the applicant to the insurance company, such payment may be recovered back.
    Error to the District Court of Ross county.
    August 1,1878, Jeremiah Pyle Drought suit against the Connecticut Mutual Life Insurance Company, to recover back the premium paid for a policy that the company had canceled.
    Pyle, in his petition, says :
    That, on August 21, 1872, the defendant, by its agent, one John A. Nipgen, duly authorized to take applications for life insurance in the company of defendant, and to receive the cash premium thereon, applied to plaintiff at his home, “Pyle Farm,” in Ross county, and requested him to take a policy of insurance in defendant’s company upon the life of plaintiff. At first, plantiff refused to do so on account of having no money, when Nipgen offered to advance to or loan plaintiff the money to make the first payment on the policy, to which proposition plaintiff acceded, and then told Nipgen that he, plaintiff, had failed in getting a policy of insurance, in June, 1871, in the Charter Oak Insurance Company, of which Mr. Schutte was agent, on account of something being the matter with his pulse. Nipgen then asked plaintiff if the application had been sent to the company. Plaintiff replied that it had not as he knew of. To which Nipgen responded, that if it had not gone any farther than that it did not make any difference; and, thereupon, plaintiff agreed with defendant, acting by its agent, to make application for a policy of insurance upon his life in defendant’s company for the sum of ten thousand dollars, the same to be paid at the office of defendant, in Hartford, Connecticut, to Ede Pyle, wife of plaintiff, if she survived him — if not, to the children of plaintiff, or their legal representatives, etc. The said Nip-gen, having a blank application, then commenced asking plaintiff the questions required to be asked of an applicant by the “statement of particulars respecting the person whose life is proposed for insurance, and which statement forms a part of the contract of insurance,” and which are the same questions attached to the policy afterward issued by defendant, and plaintiff answered them until Nipgen came to the question, “Has any company ever declined to grant insurance on your life?” when he, said Nipgen, said he would just answer that question “No.” Plaintiff'told him “it was something he knew nothing about; that he could do just as he pleased about that.” Said Nipgen thereupon put down, in answer to the question, “no.” Plaintiff and Nipgen, on the same day, went to Hallsville, to Doctor Gildersleeve, who, owing to the absence of the regular examining physician of the defendant, examined plaintiff, and thereupon Nipgen told Gildersleeve to answer all the medical questions “ noj” meaning the “ Questions to be answered by the medical examiner 0of the Connectical, Mutual Life Insurance Company,” and they were so answered. Plaintiff then signed said application for his wife and himself as required, and executed his note, payable to the order of Nipgen at the First National Bank of Chillieothe, Ohio, four months and ten days after date, for the sum of $219.20, with interest, being the amount of “ cash premium ” required to be paid, and which note, having been indorsed by Nipgen, plaintiff, afterward, at maturity, paid. The application was sent to the company, and a policy, No. 119,633, of date August 31, 1872, in said amount, on plaintiff’s life, issued, and shortly afterward delivered to plaintiff. Upon reading the policy, about a month afterward, plaintiff' found it contained, among others, the following conditions and agreements:
    “ This policy is issued and accepted upon the following express conditions and agreements :

      “1. That the answers, statements, representations, and declarations, contained in or indorsed upon this application for this insurance — which application is hereby referred to and made part of this contract — are warranted by the insured to be true in all respects : and that if this policy has been obtained by or through any'fraud, misrepresentation, or concealment, that this policy shall be absolutely null and void. . . .
    “ 4. That in every case in which this policy shall cease and determine, or shall become null and void, all premiums paid in respect of the same shall be forfeited to the company.”
    At the foot of the application, and a part thereof, is the following :
    “It is hereby declared and warranted that the above are fair and true answers to the foregoing questions; and it is acknowledged and agreed by the undersigned that this application shall form a part of the contract of insurance, and that if there be, in any of the answers herein made, any untrue or evasive statements, or any misrepresentations, or concealment of facts, then any policy granted upon this application#shall be null and void; and all payments made thereon shall be forfeited to the company.”
    Plaintiff then called on Nipgen, and, referring him to the terms of the policy, told him that he thought it was of no account, owing to the answer, “no,” to the question whether any company had ever declined to grant insurance on his life. He said the plaintiff should bring the policy in and get it corrected, and that he would write to the company about it.
    Plaintiff took the policy to Nipgen, and Nipgen wrote to the company, stating that said question should have been answered “yes,” instead of “ no,” and stated how far the Charter Oak matter had gone in plaintiff's case. Plaintiff signed the letter, and Nipgen mailed it. About three or four weeks afterward, plaintiff inquired of Nipgen about the matter, and was told that the company had said that plaintiff had better go before Doctor Scearce, and be reexamined. About a week after, plaintiff did so, and was asked about liis heart, and answered that it bothered him sometimes; that, after working hard, he got weak and nervous sometimes; that he took whisky and ginger for it. Plaintiff left, and they made out the application. Plaintiff called on Nipgen repeatedly about the matter, and he claimed that he had not yet heard from the company; then, about two months after that, Nipgen claimed the application, meaning the new or corrected one, had been mislaid in the Cincinnati office of defendant. Then Nipgen and Scearce made out another application, and sent it on. This was the third application, and was made without the knowledge of plaintiff. When plaintiff again called on Nipgen, he was informed by him that the company had declined his application.
    There were attempts to get a new or corrected policy in place of the original one.
    On August 1, 1873, or thereabouts, plaintiff informed Nipgen that he was ready to make payment whenever he, Nipgen, would get it fixed. The defendant, upon receiving the third application, and without the knowledge or consent of plaintiff, canceled and annulled said policy of August 31, 1872. This was, as plaintiff thinks, at or about the expiration of one year from the time it was issued. Upon being informed of said cancellation of said policy, some time in September, 1873, the precise time not now remembered, plaintiff:' demauded from said agent and said company, the re-payment of his money so paid as premium, which was refused.
    Wherefore plaintiff prays judgment against said defendant for said sum of $219.20, with interest thereon, from August 31, 1872; or, if the court shall be of opinion that an action to recover back the money paid is not the proper action, then that the plaintiff may recover from the defendant the sum of $500, his damages herein sustained; or that defendant, upon being paid the back premiums on said policy, may be ordered to rescind the cancellation and annulling of said policy, and to correct the same as to said answer mentioned, according to the fact, and for other proper relief.
    A demurrer to this petition was overruled, and the insurance company answered, denying that plaintiff “ told said Nipgen that he,plaintiff, had failed in getting a policy of insurance in June, 1871, in the Charter Oak Insurance Company, of which Mr. Scbutte was agent, on account of something being the matter with his pulsethat “Nipgen then asked plaintiff if the application had been sent to the company;” that “plaiutiff replied that it had not as he knew of, to which Nipgen responded that if it had not gone farther than that, it did not make any difference,” and says that no such conversation took place between the plaintiff and Nipgen ; also, the company denied other specific allegations, but it did not deny that its agent, .Nipgen, wrote the application. To this answer plaintiff replied, denying some specific allegations of the answer. On the trial, by request of defendant, the court found, as its conclusions of fact, that in addition to the facts admitted by the pleadings, that several of the answers to questions contained in the application of the plaintiff, on which the policy of insurance was issued, were erroneously answered, which answers were by the terms of the policy made warranties, but the court further finds that all of said questions so erroneously answered by the plaintiff', were so answered under an innocent misapprehension of the purport of the questions and the answers, and the answers that should have been made thereto, and without any intent to perpetrate a fraud of any kind upon the defendant. The court further finds that the untruth of several of said answers was upon questions material to the risk, and that by the terms of said policy and the application which became and was a part thereof, the untruth of said answers constituted breaches of the warranties in respect thereof contained in said policy, and that by its terms the breach of said warranties was to make said policy null and void.
    The court finds as conclusions of law, that the -plaintiff is not entitled to have the cancellation of said policy of insurance set aside, nor to have the same reformed in any particular, and that the same is wholly void, and of no effect whatever, and was so from the moment it was issued.
    The court further finds as a conclusion of law, that the plaintiff is entitled to recover of the defendant the sum of $219.20, the premium paid, with interest from the 21st day of August, 1872, to which the defendant, by counsel, excepted.
    A motion for a new trial was overruled, and the ruling excepted to, and judgment was entered for Pyle.
    The district court affirmed this judgment, and plaintiff in error now seeks to reverse these judgments.

      Lawrence T. Neal, for plaintiff in error.
    This is not a case in which the rule that the premium must be returned where the risk has not attached or commenced to run, can be applied. Upon the filing of the application, the payment of the premium, and the issuing of the policy, the contract between the parties was complete, and the risk then attached. This was not prevented by the declarations in the application and policy that fair and true answers should be given to the questions in the application, and that any untrue or evasive statements, or any misrepresentation or concealment of facts, should nullify the policy. These provisions were inserted for the benefit of the company. The policy was not void, but simply voidable at the option of the company.
    The company might have waived the provisions which authorized it to declare the policy void upon the terms and conditions named therein, and, in that event, the risk, which did run for one year, would have continued to run, Insurance Company v. Norton, 96 U. S. 234.
    The premium was, therefore, rightfully retained by the company when it elected to annul the policy, the rule being that if the risk once attaches the premium can not be returned. Bliss Life Ins., sec. 423; Fulton v. Lancaster, Ohio Ins. Co., 7 Ohio (2 pt.), 5.
    The rights of the parties are to be determined by the contract between them, and by the express terms of this contract the premium was to be forfeited to the company if there should be in any of the answers of Pyle “any untrue or evasive statement, or any misrepresentations or concealment of facts.” The terms of this agreement can not be altered or varied by interpolating new words, or by giving to the words used by the parties other than their ordinary meaning. It has been repeatedly held, in like cases, that the premium can not be recovered. Bliss Life Ins., §§ 37, 63; Ellis Fire and Life Ins. 260; Angell Fire and Life Ins., § 402; Byers v. Insurance Company, 35 Ohio St. 606; Anderson v. Fitzgerald, 4 Ho. Lords Cas. 484; s. c., 24 Eng. Law and Eq. 1; Miles v. Connecticut Mut. Life Ins. Co., 3 Gray, 580, 582; Duckett v. Williams, 2 Cromp. & Mees. 348; s. c., 4 Tyrwh. 240; Day v. Mutual Ben. Life Ins. Co., 1 McArthur, 41; s. c., 29 Am. Rep. 565; Low v. Union Cen. Life Ins. Co., 6 Cin. Law Bull. 666.
    The only ground upon which the premium can be recovered by the insured in any case where the policy is void ab initio, is that there is no consideration for its payment in the first instance. But there was a consideration. The responsibility assumed by the company, the risk and inconvenience to which it was exposed, and the expense incurred in commissions to its agents, and otherwise, constituted a sufficient consideration. Lewis v. Phœnix Mut. Life Ins. Co., 39 Conn. 100.
    The insured can in no case recover the premium if there has been any fraud upon his part. May on Insurance, § 567; Angell Fire and Life Ins., §400; Bliss Life Ins. § 423; Ellis Fire and Life Ins. 141.
    The misrepresentations made by Pyle, whether made purposely.or unintentionally, should be treated as fraudulent. Bliss Life Ins., § 36; 1 Story Eq. Jur., § 193; Friesmuth v. Agawam Mut. Fire Ins. Co., 10 Cush. 587.

      Clark $ MeDougal, for defendant in error.
    Whatever questions were erroneously answered were so answered by the agent of the company — at his dictation, and by him written in the application — after having been fully advised by Pyle of all the circumstances. Such wrong should be imputed to the company, and not to the insured. Insurance Company v. Williams, 39 Ohio St. 584, 588; Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 647, 656.
    The answers of the insured as to the condition of his health are made warranties by the terms of the policy. Such warranties are, however, in the nature of conditions precedent. O’Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122; Ripley v. Ætna Ins. Co., 30 N. Y. 136.
    A contract made upon a condition precedent can only become a valid contract upon the existence of the condition according to the terms agreed upon by the parties. The answers being in certain particulars untrue — incorrect— and the truth of these answers being made warranties by the terms of the policy, the policy itself never took effect as a coutract of insurance. Pyle was at no time insured, for the company was at no time bound by the policy ; and the questions having been answered under an innocent mistake as to their import, and without any intention to deceive, the premium should be returned. 3 Kent’s Com. *341, *342; Steinback v. Rhinelander, 3 John. Cas. 274, 275; Tyrie v. Fletcher, Cowp. 666; Marshall on Insurance, 549; Delavigne v. United Ins. Co., 1 John. Cas. 310; s. c., 1 N. Y. Com. Law Rep. 335.
    A policy of insurance is a contract to be governed by the same principles which govern other contracts. May on Ins., §§ 172, 173; Cornfoot v. Fowke, 6 Mess. & Wels. 368; Turley v. North Am. Fire Ins. Co., 25 Wend. 374, 377.
    When the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or to any other cause, the premium shall be returned. May on Ins., § 4; Stevenson v. Snow, 3 Burr. 1237; Tyrie v. Fletcher, Cowp. 668; Pothier du Cont. d’Ass. 4; Pardessus, Droit Commercial, 596, 3; 2 Marsh. Ins. 663.
    If a policy be void ab initio, or if the risk never attaches, and there is no fraud on the part of the insured, and the contract is not against law or good morals, lie may recover back all the premiums he may have paid. May on Ins., § 562; Clark v. Man. Ins. Co., 2 Woodb. & Minot, 472; Mutual Ass. Co. v. Mahon, 5 Call. (Va.) 517; Fowler v. Scottish Eq. Life Ins. Co., 28 L. J. Ch. 225; Rochester Ins. Co. v. Martin, 13 Minn. 59; Foster v. U. S. Ins. Co., 11 Pick. 85.
    Where a policy is avoided by concealment or misrepresentation, not fraudulent, the assured is entitled to a return of premium. Anderson v. Thornton, 8 Wels. H. & G. 425; Watertown Fire Ins. Co. v. Grehan, 72 Ga.
    To sustain the claim of forfeiture would be against the policy of our law. See act of May 15, 1878, 75 Ohio L. 376; act of April 2, 1873, § 3; 70 Ohio L. 99.
   Follett, J.

In filling up the application for this policy, Nipgen was the agent of the insurance company, and was not the agent of Pyle. Insurance Co. v. Williams, 39 Ohio St. 584. And though the application was thus made, the policy was canceled for its untrue statements innocently made on the part of. Pyle.

The application and the policy together form the contract. The terms of the contract are plain and free from doubt or ambiguity. It is agreed in the application, “that this application shall form a part of the contract of insurance, and that if there be, in any of the answers herein made, any untrue or evasive statements, or any misrepresentations or concealment of facts, then any policy granted upon this application shall be null and void.”

And the policy provides that “ this policy is issued and accepted upon the following express conditions and agreements : 1. That the answers, statements, representations, and declarations, contained in, or indorsed upon this application for this insurance — which application is hereby referred to, and made part of this contract — are warranted by the insured to be true in all respects; and that if this policy has been obtained by or through any fraud, misrepresentation. or concealment, that this policy shall be absolutely null and void.”

I. Did the policy ever attach, or was it ever valid ?

The court finds as conclusions of fact, that “ several of the answers to questions contained in the application of the plaintiff, on -which the policy of insurance was issued, were erroneously answered;” and the “court further finds that the untruth of several of said answers was upon questions material to the risk, and that, by the terms of said policy and the application which became and was a part thereof, the untruth of said answers constituted breaches of the warranties in respect thereof contained in said policy, and that by its terms the breach of said warranties was to make said policy null and void.”

And the court finds as a conclusion of law, that the policy “is wholly void, and of no effect whatever, and was so from the moment it was issued.”

But the plaintiff in error insists that the policy took effect and was in force until it was cauceled. To sustain such a claim would ignore the expressed terms of both the application and the policy, as well as the cause of the cancellation of the policy. These terms the plaintiff in error has never waived, but it-has insisted upon them and acted upon the strict letter.of the agreement, and has canceled the policy.

This is not a new question in the courts. In the case of Clark v. Manufacturer's Ins. Co., 2 Woodb. & M. 472, the court held: “A warranty is generally a stipulation made and described in the policy itself, and must be complied with, whether material or not.” “Where a material fact is suppressed in such representations, the insurance is avoided, and the policy does not attach, whether the suppression happens by neglect or fraud.” In Friesmuth v. Agawam Mutual Fire Ins. Co., 10 Cush. 587, “the application contained an untrue representation that the property was unincumbered,” and the court held, “ that the policy was wholly void.” In Foot v. The Ætna Life Ins. Co., 61 N. Y. 571, the court held: “ If a policy of insurance declare that the statements made in the application shall be part and parcel of the policy, such statements become warranties, and must be true, whether material or not.”

“A contract of insurance, like other contracts, is avoided by an untrue statement by either party as to a matter vital to the agreement, though there be no intentional fraud in the misrepresentation.” The Co-operative Life Ass’n of Miss. v. Leflore, 53 Miss. 1.

On a similar coutract the supreme court of the United States, in Jeffries v. Life Ins. Co., 22 Wall. 47, held : “Any answer untrue in fact, and known by the applicant for insurance to be so, avoids the policy, irrespective of the question of the materiality of the answer given, to the risk.” And in the opinion, Mr. Justice Hunt says: “Nothing can be more simple. If he makes any statement in the application, it must be true. If he makes any declaration in the application, it must be truc. A faithful performance of this agreement is made an express condition to the existence of a liability on the part of the company.” And this is approved in the case of Ætna Life Ins. Co. v. France, 91 U. S. 510, and there the court also held, “that the company was not liable if the statements made by the insured were not true. The agreement of the parties that the statements were absolutely true, and that their falsity in any respect should void the policy, removes the question of their materiality from the consideration of the court or jury.”

This court, in Union Mutual Life Ins. Co. v. McMillen, 24 Ohio St. 67, held: “Where a life policy is made and accepted, upon the expressed condition that if the annual premium is not fully paid within the time specified, the policy ‘ shall be null and void, and wholly forfeited,’the failure to pay the premium avoids the policy;” and that was where the policy had attached. But in such a case, in Union Central Life Insurance Co. v. Bernard, 33 Ohio St. 459, the court held, where “the uniform custom of the insurance company has been to give notice of the time when the premiums fall due, and to collect the same at the residence of the policy-holder, through a local agent residing in his neighborhood, good faith requires that this mode of collection should not be discontinued, and payment required at the company’s office, without notice to the insured.”

There are mistakes jm policies that may be disregarded or corrected and the policy enforced. See Harris v. Columbiana County Mutual Ins. Co., 18 Ohio, 116, and Insurance Co. v. Williams, supra. But in this case the court did not err in holding the policy “ is wholly void and of no effect whatever, and was so from the moment it was issued.”

II. Should the premium be returned ?

The court finds as a conclusion of law that Pyle is entitled to recover of the insurance company the premium paid, with proper interest. The court thus held, not only because the policy was void ab initio, but because it also found “that all of said questions so erroneously answered were answered by the plaintiff under an innocent misapprehension of the purport of the questions and the answers, and the answers that should have been made thereto, and without any intent to perpetrate a fraud of any kind upon the defendant.”

There was no actual fraud, at least on the part of Pyle. On this policy, no risk ever attached.

In 1777, in the case of Tyrie v. Fletcher, Cowp. 666, 668, Lord Mansfield stated the general rule to be, “that where the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or to any other cause, the premium shall be returned, because a policy of insurance is a contract of indemnity. The underwriter receives a premium for running the risk of indemnifying the insured, and whatever cause it be owing to, if he does not run the risk, the consideration, for which the premium or money was put into his -hands, fails, and therefore he ought to return it.”

In 1800, in the case of Delavigne v. United Ins. Co., 1 Johns. Cas. 310, the court held, “where a policy becomes, void by a failure of the warranty, the insured is entitled to a return of the premium, if there be no actual fraud.”

“Where a policy is avoided by concealment or by misrepresentation not fraudulent, the assured is entitled to a return of the premium, and the policy is conclusive evidence of the receipt of the premium by the insurer.” Anderson v. Thornton, 8 Exch. 425.

And such is now the general rule. See 3 Kent, *341, and May on Ins. § 4.

The rule is different where the risk has attached or there is actual fraud.

Tet it is urged here that “ we must leave the premium paid by the insured to be disposed of according to the terms of his contract with the insurer.” No such terms exist. There is no contract between Pyle as the “insured” and the company as the “insurer.” Under this policy Pyle never was insured, and the company never was an insurer of Pyle. The policy has always been void, and this claim, based on the contract, is as void as the policy. From all that appears Pyle was not in fault, and the agent should not have obtained the premium, and the insurance company should not retain Pyle’s money.

Of course, we have not considered how far the provisions of such a policy may be waived by the acts of the parties, nor to what extent such parties may be bound by their subsequent acts, and in connection with such provisions, and what was done in procuring such application and policy. The court did not err.

Judgment affirmed.