author: Williams, J.

text:
    The Lake Erie & Western Railroad Company v. The Commissioners of Hancock County et al.

      County ditch — Public necessity for — Question for jury, tohen— Nature of evidence — Rights of property owner — Compensation for encroachment — Excavation under railway tracks— Estimation of damages.

    1. Where, upon an inquiry as to the public necessity of a contemplated county ditch, the evidence tends to prove that its construction will afford needed drainage to a considerable body of low lands, or marshes, or ponds, or to one or more public highways, or to public school grounds, the question should be submitted to the jury, under proper instructions, whether the ditch will be conducive to the public health, convenience or welfare: and, on that inquiry the jury may consider as evidence, facts brought to their knowledge from their actual view of the proposed route, made as provided by statute.
    2. It is competent for the jury to find in favor of the public utility of the ditch, in the sense that will justify the appropriation of lands for its construction, if it will be conducive to the public health convenience or welfare of the neighborhood through which it is located. A more general public necessity is not required.
    3. Any direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it, is a taking of his property, for which he is guaranteed a right of compensation by section 19, of the Bill of Rights.

      4. The location and construction of a public ditch across or upon the right of way of a railroad company, though the ditch be constructed by tiling under the surface, is an appropriation of the company’s property, which entitles it to compensation for the value of the interest so taken.
    5. When, in the construction of such a ditch, it will become necessary to make an excavation under the tracks of the railroad, and for the company to incur expense in supporting the tracks, or otherwise, while the ditch is being constructed, such expense should be taken into account in estimating the damages of the company, and a refusal to so instruct the jury is error.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Hancock county.
    Error to reverse judgment of the circuit court affirming the common pleas which affirmed judgment of the probate court on appeal from county commissioners, in proceedings for the establishment of a county ditch. Judgment reversed.
    The record shows that a petition which prayed for the location and construction of a tiled ditch along a described route was subscribed by a number of the owners of lands in the vicinity of the ditch, and filed with the county auditor on the 14th day of June, 1897; and, after the necessary preliminary steps had been taken, the county commissioners made, and caused to be entered on their record, an order for the location and construction of the ditch as prayed for in the petition. An engineer was appointed to survey and grade the ditch, divide it into proper sections and make report to the commissioners on the 2nd day of August, 1897; and, it was ordered that the report should be accompanied by a plat and profile of the ditch, an estimate of the cost of its construction, and a schedule of the lands that would be benefited by its construction.
    Such report was made and filed at the designated time, and on that day the commissioners met to consider the report and exceptions that should be made thereto. The ditch, as located, passed across the right of way of the Lake Erie & Western railroad company, and under its roadway, at a point where an iron pipe-had been previously placed as a means of conducting away the water accumulating in that locality. The ditch required a larger conduit, and the engineer reported that “in view of the fact that the pipe under the L. E. & W. R. R. track is not low enough to accommodate the grade of the ditch, and as considerable expense will be incurred in lowering the same, no assessment be charged against this company for outlet benefit, provided they lower the pipe at their own expense.” When the commissioners took up the report for hearing, the railroad company presented its objections, thereto in writing, wherein they prayed to be relieved from the assessment- recommended by the engineer, “for the following reasons: First. The commissioners have no authority in law to make said tile ditch. Second. The ditch is of no public utility. Third. The assessment is inequitable and not in proportion to benefits nor in proportion to other assessments. Fourth. The tile ditch is no benefit whatever to this company.” The company also presented the following claim for compensation and damages: “On the right of way of the Lake Erie and Western Railroad Company, where said proposed ditch crosses said railroad,, we claim compensation for the land taken in the sum of $100.00 and for damages caused us by lowering the iron pipe or the removal of the same in the sum of $200.00”
    The hearing upon the report and the claim and objections of the company, was then adjourned until the 5th day of August, 1897, when, after having made an actual view7 of the premises, the commissioners reassembled in pursuance of the adjournment, and then, on final consideration, refused the company’s claim for compensation and damages, overruled its objections, and adopted the engineer’s report, w7ith some modifications with respect to other parties that are not material here. An appeal by the company to the probate court w7as duly perfected, and in that court the company moved to dismiss the proceedings on the grounds: “1st. The petition does not state facts sufficient to give jurisdiction to the commissioners to locate said ditch as their order calls for. 2nd. The commissioners have no authority in law7 to lay a tile ditch such as prayed Cor and as described in their order. 3rd. There is no authority in law7 to lay a tile ditch such as this asked in the petition and laid in the order of said board.” This motion w-as overruled, the proceedings previous to the appeal held regular, and a jury w7as empaneled to try and determine (1) w'h ether the ditch “wfill be conducive to the public health, convenience or welfare;” (2) the compensation due to the railroad company for land taken for the ditch, and (3) the damages due the company on account of the location and construction of the ditch. The jury, after having-viewed the premises, accompanied by the sheriff, and heard the evidence offered by the parties, returned their verdict finding that, “the ditch will be conducive to the public health, convenience and w7elfare,” and that nothing- w7as due to the company for land taken, nor for damages. A motion of the company for a new7 trial wras overruled, and judgment entered on the verdict. As has been already stated, that judgment w-as sustained by the common pleas and circuit courts, and the case is here for review7 by this court.

      The errors relied on, and such further facts as may be necessary for their proper understanding, are stated in the opinion.

      Jason Blackford, Aaron Blackford and John B. Cockrum, for plaintiff in error.

      Charles B. Jordan and John Poe, for defendant in error. •
   Williams, J.

The appeal taken by the plaintiff in error was, as is authorized by section 4463, of the ReUsed Statutes, from that part of the order of the county commissioners by which it Avas determined that the proposed ditch aaJH be conducive to the public health, convenience or welfare, and that the plaintiff in error was not entitled to compensation for land appropriated, nor damages claimed to property affected by the improvement. The verdict and judgment in the probate court sustained the determination of the commissioners in these respects, and the errors assigned here relate to the action of the court and jury in the trial of these questions.

One contention is, that the court, upon the evidence introduced, should have held, and so directed the jury, that the ditch would be a mere private advantage to certain property owners, and not. of such public utility as is required by the law to authorize its establishment. The law undoubtedly requires something more than mere private and individual advantage to sustain an improvement of this nature. It must be a public improvement, in the sense that there is a public benefit resulting therefrom. Rut, it need not be a general public benefit. It is sufficient for that purpose if it be conducive to the public health, convenience, or welfare of the neighborhood through which it is constructed. Chesbrough v. Commissioners, 37 Ohio St., 508. We have examined the evidence in the record sufficiently to satisfy us that it strongly tends to prove' that the ditch will be of considerable public utility,, and could not properly have been withdrawn from the' consideration of the jury. It appears that the ditch-, is something over two miles in length, passing through, a section of country in need of the drainage it will' furnish; that it will contribute materially to the drainage of three or more public roads which it crosses, and to the drainage of the public school grounds near-which it passes; and, that the present drainage is inadequate for each of those purposes. Besides, the jury were entitled to consider as evidence on this subject, the facts brought to their knowledge from their actual view of the premises. Williams v. Lockoman, 46 Ohio St., 416. The court charged the jury on this subject as. follows :‘Tt is the public health,convenience or welfare-of the community to be affected by the proposed ditch, and not that of the public at large, that is to be regarded in the construction of a ditch. Hence, if it is apparent to you that the proposed ditch will be conducive to the public health, convenience or welfare of the neighborhood through which it will pass, the commissioners are authorized to construct the same,, and in that case, as to this first proposition, your verdict will be for the establishment of the ditch. It is not enough, however, to find that the ditch would be a great convenience, but before you can find in favor of the ditch, you must find that it would be conducive to the public health, convenience or welfare, of the neighborhood through which the ditch passes. The mere fact that the ditch in question might enable the petitioners to raise more corn or other grain, does not authorize you to return a verdict in favor of the establishment of the ditch. The fact that the ditch in question might enable the petitioner to raise larger crops is a fact going to show that he would be privately benefited, but it requires more than this to authorize you to find a verdict showing that it would be conducive to public health, convenience or welfare, to locate the ditch. The prosperity of each individual conduces, in a certain sense, to the public welfare, but the fact is not sufficient reason for taking other private property to increase the prosperity of individual men. The draining of marshes and ponds may be for the promotion of public health, and so become a public object; but the draining of farms to render them more productive, is not such an object. If you find that the petitioners, and the appellant, the Lake Erie & Western Railroad, are the only persons or corporations in any way interested in the location of the ditch, and that it would not be conducive to public health, convenience or welfare, to locate the ditch in question, then and in that case you should return your verdict against the proposed ditch. If you find from the evidence that a public ditch has been heretofore established, and constructed along the route of the proposed improvement, and that such ditch, if properly cleaned out would afford sufficient drainage for the lots and lands sought to be drained by the proposed ditch, then your verdict should be against the establishment of the proposed improvement.” The charge is a sufficiently clear and comprehensive statement of the law applicable to this branch of the case, and covers, substantially, all the instructions requested by the plaintiff in ' error. • This question was therefore properly left to the determination of the jury.

The further and principal contention of the plaintiff in error is, that it was denied compensation for its land taken for the ditch, and damages to its other property affected by the improvement. The charge of the court on the subject of compensation for land taken seems unobjectionable. It is as follows: “If you find from the evidence that in the construction of the proposed ditch, any land belonging to the-appellant, the Lake Erie & Western Railroad Company, will be appropriated to the public use, it will be your duty to determine the value of the land so appropriated, giving due consideration to the location of the land, and the amount of land that would lie appropriated, and to return the-amount in your verdict as compensation due the appellant for the land so appropriated.” Notwithstanding this instruction, the jury failed to award the plaintiff in error any amount as compensation for its land over or through which the ditch was. to be located and constructed. This, apparently, resulted from the theory on which that action of the-jury is sought to be justified in the brief of counsel for the defendant in error, which is that, as the ditch when constructed across the railroad right of way will consist only of a pipe or tile placed entirely beneath the surface, there will be no appropriation of' the company’s land, and therefore no compensation should be allowed the company. That position, we-think, cannot be maintained. It seems evident, that, any direct encroachment on land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it, is a taking of his. property for a public use, within the meaning of that, provision of the constitution which guarantees to the owner a right of compensation without deduction for-benefits. By tbe location and construction of this ditch the property of the railroad company will be subjected to a perpetual easement, with which it cannot interfere, however much it may desire, or be to its interest, to have it removed or changed; and,, the company is deprived, in some measure, of that absolute right of use and disposition of its land which is incident to the ownership of property. The value of the interest thus appropriated may be very small, and the amount of the compensation difficult of proper-measurement. There is, nevertheless, an appropriation of the company’s property, though to a very limited extent, for which it is entitled to some compensation, however small the amount may be.

With respect to the damages claimed by the company to its other property, the jury was instructed that: “If you find from the evidence that any property owned by the appellant would be damaged by the construction of the proposed ditch, it will be your duty to determine the amount of damages which the appellant would suffer by reason of the construction of such ditch, and to return the amount in your verdict as so much due the appellant for such damages.” We find no error in this charge. It is a correct statement of a general rule. There was evidence, however, tending to show that in constructing the ditch across the roadway in use by the railroad company, it would be necessary to excavate under the track and make provision for supporting the track while the ditch was in process of construction, which would result in some expense to tbe company, and inconvenience in the use of the road until the work should be completed ; and the company requested an instruction applicable to that feature of the case to the effect that, in determining its damages the jury should take into consideration any necessary expense required in securing the roadway so that the construction of the ditch thereunder should not interfere with the use of tiie railroad at that place. This instruction was refused, erroneously, we think, and for that error, and the one already referred to with regard to compensation for the land appropriated, the judgments beloAY should be reversed, and the cause remanded to the probate court for a new trial. We find no other error in the record.

Judgment accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    The Northern Ohio Railway Company v. The Commissioners of Hancock County et al.

      •County ditches — Authority of county commissioners to locate and construct — Sections 4447 and 4448, Rev. Stat. — Commissioners may change terminus of ditch, when.

    1. County commissioners have authority, under section 4447 of the Revised Statutes, to order, in the same proceeding, a ditch to be located, constructed, and tiled. It is not required that there shall first be an open ditch constructed, and thereafter a separate proceeding to have it tiled.
    2. Under section 4448, of the Revised Statutes, the commissioners may change either terminus of a ditch before its final location, when in their opinion the object of the improvement will be bettter accomplished thereby; and their official action making the change raises the presumption that there was legal cause therefor.
    3. It is not a valid objection to the establishment of a tiled ditch that it is located, in part, longitudinally, or otherwise, on the right of way of a railroad company, unless it is made to appear that the proper use of the right of way by the company will be thereby defeated.
    4. The syllabus in the preceding case, except the 5th paragraph, is applicable to questions involved in this case, and is here adopted.
    (Decided May 22, 1900.)

      Error to the Circuit Court of Hancock county.
    This case grows out of a proceeding before the commissioners of Hancock county, for the establishment of a county ditch. The proceedings were had about the same time as those in the preceding case; and though they relate to a different ditch, ■ both cases reached this court in the same way, and at the same time. In many respects the cases are not substantially different, but some questions are made in this case that were not presented in the other case.

      John B. Cooler nm and Jason Blackford, for plaintiff in error.
    The grounds of error which we shall more particularly urge will be in the order set out in the petition in error and the motion for a new trial.
    First. As to the refusal of the commissioners and of the jury to give this company any compensation whatever for land taken and for damages done to the property of the appellant.
    Mr, Beatty testifies the land taken is worth $25.00; there is no claim anywhere that no land is taken from the company and that the land taken has some value. Unless compensation is paid the commissioners have no jurisdiction whatever to locate this ditch on the .appellant’s land. Section 19, Article 1, Constitution of Ohio; section 4401, Revised Statutes; Anderson v. Commissioners, 12 Ohio St., 635; Maude Carlin v. Hosler, Treas., 58 Ohio St., 694.
    It will be seen by the transcript from the commissioners records filed in this case, the commissioners undertake to change the route from that prayed for in the petition, and surveyed and estimated by the engineers. The commissioners assume to change the route without any reason whatever therefor and with neither a petition nor asking for a change. Allyn v. Depew et al., 28 Ohio St., 619, 623.
    It is an underground drain asked for in the petition in our case and located by the commissioners in their proceedings and on appeal is shown by the evidence to be what was wanted. This the township trustees alone had jurisdiction to consider, and the commissioners’ proceedings are wholly void, and consequently the acts of the probate court on appeal are void.
    We maintain further that there can be no public health, welfare or convenience involved in the making of this underground drain, and there is not a word of evidence in the case from which the jury would be justified in finding such a fact. Ferris v. Bramble, et al., 5 Ohio St., 109; Bothe v. R. R. Co., 37 Ohio St., 147.
    The damages or compensation for the land taken must be paid in money, or secured to be paid to the acceptance of the owner, before the opening of the road can be ordered.
    There is error then in the probate court ordering this ditch for no compensation has been tendered or paid. McQuillen v. Hatton, 42 Ohio St., 202; Smith v. A. & G. W. R. R. Co., 25 Ohio St., 91
    The power to locate and construct a ditch arises from the right of eminent domain, and the requisite steps must be strictly followed. Sessions v. Crunkilton, 20 Ohio St., 349.
    On the question of the practicability of the route and necessity for the location across the roadbed, we cite Railway Co. v. Railway Co., 2 Bull, 189; 7 Dec. Re., 364.
    Notice in our case that the petition calls for this ditch to run along the north side of the railroad to a sufficient natural outlet. The engineer made an estimate of the cost on this route at $18. The commissioners in their transcript say that because the company put in claims for compensation and damages, they will change the route to cross the roadbed and make the company put in a new culvert. This culvert is shown by the evidence to be very expensive and not at all necessary. Morehouse v. Norwalk, 6 Bull., 267; 8 Dec. Re., 199.
    If the proceeding is only colorable, and the true object is to secure farm drainage for Shoemaker, then the proceeding is void. Blue v. Wentz, et al., 54 Ohio St., 247; Washburn on Eas., 23, 211, 336; Tootle v. Clifton, 22 Ohio St., 247; Bushfield v. Meyer, 10 Ohio St., 334; Crawford v. Rambo, 44 Ohio St., 279; 26 Pa. St., 407.
    The commissioners have no authority to locate a ditch longitudinally along the right-of-way. This the petition asks to have done and the commissioners on a change of route also seek to do this. Railway Co. v. North et al., 103 Ind., 486.

      Charles E. Jordan and John Poe, for defendants in error.
    This claim for compensation and damages was filed before the change. So the complaints are in substance :
    1. The commissioners allowed it no compensation for lands taken.
    2. The commissioners allowed it no damages to the remainder of its lands. And that the jury in probate court committed the same errors. Also that the commissioners are not authorized to construct tile drains.
    That the commissioners may construct a tile ditch is provided by section 4447. See also sections 4467, 4468, 4461.

      Observe: The commissioners clearly have the authority to locate and construct tile drains.- But can one claim compensation for land taken within the meaning of this statute, if, forsooth, a tile drain is put through his lands. The tile is covered up out of his way. He uses his lands, all of his lands as before, even to better advantage than before. Dirt that is dug out of a trench and put back into the trench is not “land taken” within the meaning of this law.
    Has such owner any land taken? Land is measured by the extent of its surface, not by the wagon load. The earth even in such case all remains in the owner’s deed that it ever conveyed; nothing is lost; no title is appropriated or transferred. He has the same title he always had. His title is as large and full and complete as ever before, so no land is taken by the process of tiling. Hence if this is true, the same is true where all that is done is to burrow through a right of way of a railroad company at a point say nine feet below the surface. The title of the company is as broad and covers precisely the territory, the land, it covered before. No “land taken,” Miller v. Weber, 1 Circ. Dec., 77; 1 C. C. 130.
    Observe: This is not one of the cases which comes within the meaning of the statutes authorizing the jury to assess either compensation or damages to the owner. This section contains a separate provision for this precise class of cases, and by its terms it disposes without a jury of the question of the expenses of making this change. This company had no right to claim damages for'this change for it is not included in the damage section, but it is ordered under this section and the cost of it assessed according to its provisions.

      It is conceded by the record that this culvert was necessary to let the water across this right of way, for it had been put in before and the damages here claimed are for lowering it. The commmissioners order this under section 4495 and no damage is provided in such case.
    It will be observed from the statutes above (cited) that the jury must view the situation, and no evidence is required for thei r decision. True, either party may oifer evidence and when they do the jury from their view and the evidence reach, their conclusion. It is apparent from this that no court could set aside a verdict in such a ease for insufficiency of the evidence, for that part of the evidence comprised in the view is never in the record and cannot be. The jury may throw away or discard the evidence entirely and how will any court say they are wrong, for the reviewing court nor the trial court ever has the view. So the jury control in a peculiar sense the findings in these appeals. Williams v. Lockoman, 46 Ohio St., 416.
   Williams, J.

The petition on which the commissioners acted, prayed that the ditch it was sought to have constructed, should be tiled; and the commissioners so ordered. This, it is contended, the commissioners were without authority to do. But that authority, we think, is conferred by section 4447, of the Revised Statutes, which provides that: “The commissioners of any county * * * may cause to be located and constructed, straightened, widened, altered, deepened, boxed or tiled, any ditch, drain or water-course, or box or tile any portion thereof.” This statute does not require, as counsel contend,that ¿here shall first be an open ditch constructed, and thereafter a separate proceeding to have it tiled. The statute was designed for practical purposes, and enables the commissioners in the same proceeding, when deemed advisable, to order the construction of a tiled ditch, instead of going through the formality, and imposing upon the landholders interested the expenses, of two successive proceedings to accomplish that end. This authority is not affected by the fact that a subsequent statute has conferred the power on township trustees to locate underground drains. A tiled ditch may be an underground drain, but it is still a tiled ditch within the purview of section 4447; and all underground drains are not necessarily made of tile. Until the enactment of that statute the trustees had not been invested with the power to make tiled or other underground drains, and the difference in the phraseology of that statute from that of section 4447, fails to establish that the commissioners are not, by that section, clothed with like power.

In the petition, one of the descriptive calls of the ditch is to run “along the line of the Northern Ohio railroad to the natural watercourse, and there terminate;” and, in the order establishing the ditch that terminus was changed by extending it a short distance down the stream, “far enough” as stated in the record, “to give sufficient outlet for the ditch.” By this change of the terminus, it is claimed the whole proceeding became void, because, it is said, the ditch thus established is not the one prayed for in the petition. But authority for such change is found in section 4448, of the Revised Statutes, which provides that “the commissioners may change either terminus of such ditch before its final location, if the object of the improvement will be better accomplished thereby.” The statement in the record that the change was made in order to provide sufficient outlet for the ditch, sufficiently shows that it was necessary to better accomplish the object of the imju'ovement. Besides, the change made was an act done in the exercise of jurisdiction already fully acquired, and an entry on the record showing the reason for the change was not necessary to confer jurisdiction, nor required by the statue. The official act of making the change raises the presumption that there was legal cause therefor. It was not a change of the route of the ditch, within the contemplation of section .4489.

The further claim is made in this case, that the location of a part of the ditch in question, on the company’s right of way, parallel with its used roadway, was without authority; and in support of that claim R. R. Co.’s v. North, 103 Ind., 486, is cited. It urns there held that: “In the absence of statutory authority a ditch cannot be ordered to be constructed longitudinally on a right of way of a railroad.” By our statutes, the power to establish'and construct county ditches is conferred on the commissioners in general terms, and without restraint or qualification oh. account of the nature of the use or ownership of the lands on which they may be located. And it is the settled rule in this state that, while property already appropriated in the proper exercise of the power of eminent domain cannot be taken for another public use that will wholly defeat or supersede the former use, unless the poAver to make the second appropriation be granted expressly or by necessary implication, land held by a corporation, whether acquired by purchase or appropriation, may, subject to that limitation, be made subservient to other needed public uses. Railroad Co. v. Belle Centre, 48 Ohio St., 273. There is nothing in this case to show, nor does it seem possible, that the construction of the contemplated ditch will be incompatible, or interfere, with the exercise, by the railroad company, of any of its franchises.

The questions in this case so far as they relate to the public utility of the ditch are substantially the same as in the preceding case. What is said there is applicable here, and disposes of that branch of this case. No further consideration of it is needed here.

In regard to the claim of this plaintiff in error for damages, the record shows that the court jjroperly instructed the jury, giving in charge, in substance, the instruction requested and refused in the preceding case. No exception was taken to the charge, nor request made for further instruction.

But with respect to compensation for land appropriated for the ditch, the same error occurred that was committed in the preceding case, and for that error alone the judgments below will be reAmrsed and the cause remanded to the probate court for a new trial, no other error being discovered in the record.

Judgment accordingly.


author: Minshall, J.

text:
    Penna. Fire Insurance Co. v. Drackett et al.

      Fire insurance policy — Consent by insured to arbitrate — Does-, not preclude in suit, claim for total loss — Section S6J¡3, Rev.. Stat.

    1. An insured, by consenting to arbitrate the amount of loss sustained by fire, in pursuance to the provisions o'f the policy,, is not precluded, in a suit upon the policy, from claiming and recovering as for a total loss, if the evidence sustains his claim. The provisions of section 3643, Revised Statutes, being founded upon public policy, the insured can not be held to a waiver of them.
    2. Where a building is só far destroyed by fire as to lose its identity and specific character as a building, and the parts that.remain can not be utilized to advantage in its reconstruction,, there is a total loss within the meaning of section 3643, Revised Statutes.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The action below was upon a policy of insurance on-a two-story frame house of the plaintiff. The amount, of the policy was $1,800; loss if any to be paid certain mortgagees as their respective interests might, ajipear. It contained a provision, among others, requiring the amount of the loss in case of fire, to be-submitted to arbitrators if the parties were unable to agree. A fire occurred, the amount of the loss was. submitted to arbitrators, selected by the company and the insured, and the loss was fixed by them at $1,113.-76. This the insured, claiming that there was a total, loss, refused to accept; and the suit was then brought. The company denied that there was a total loss, and further insisted on the provisions as to the arbitration. A trial was had which resulted in a verdict in. favor of the plaintiff for the full amount of the policy. A motion for a new trial ivas made on the grounds,, that the verdict was against the weight of the evidence, that the court had misdirected the jury, and had erred in the admission of evidence. The motion was overruled and judgment entered upon the verdict. A bill of exceptions, containing all the evidence and the charge and rulings of the court was taken, and made a part of the record. On error the judgment was affirmed by the circuit court. The errors assigned relate to the charge of the court and its rulings upon evidence.

      G. W. Fuller, for plaintiff in error.
    This court has held and it is therefore settled that section 3643, Revised Statutes, becomes a part of every insurance contract entered into in this state, and that notwithstanding any provision of the policy to the contrary, in case of total loss the insurer must pay the insured the full amount named in the policy provided the insured does nothing that prevents him claiming the advantage of the statute.
    Moreover, the Supreme Court of the United States has recently sustained the constitutionality of such laws in a case that went up from the state of Missouri. Orient Ins. Co. v. Daggs, 172 U. S., 557.
    The purposes for which this statute was enacted are quite clear, and have in fact been fully stated by this court in Ins. Co. v. Leslie, 47 Ohio St., 409; and in Sun Fire Office v. Clark, 53 Ohio St., 414. The Providence Washington Ins. Co. v. Wm. Grey, decided September 13, 1894, C. C. Ashtabula Co. This case seems to have been as to the questions involved, precisely like the one at bar, except that the award was also attacked for fraud and irregularities.
    It is hardly necessary to cite authorities upon the validity of such agreements in general. They have been recognized by all the courts from the United States Supreme Court down. Hamilton v. Ins. Co., 137 U. S., 370.
    There are comparatively few decisions on the question under discussion, owing, we suppose, to the fact that comparatively few states have adopted such a statute. Among them are Texas, Wisconsin, Misouri, New Hampshire, Nebraska and Ohio. And most of the cases decided under these statutes deal with definitions only.
    However, in Insurance Co. v. Eddy, 36 Neb., 461, it is held in a very muddy opinion that under a statute similar to ours an appraisal agreement after a total loss has no effect. But in that case there was no complete appraisal, and there was some evidence to the effect that this had been prevented by the appraiser selected by the insurer. Furthermore, the answer does not seem to rely upon the appraisal agreement, and the case really decides only that in case of total loss an appraisal is not necessary.
    Two Missouri cases, at least, hold that is a case of total loss, or where the property is “wholly destroyed,” an agreement to arbitrate is nudum pactum and consequently of no effect. These cases are: Ampleman v. Ins. Co., 35 Mo. App., 308; Baker v. Ins. Co., 57 Mo. App., 559.
    But these seem to have been cases of admitted total loss and probably such a ruling is correct under those circumstances.
    This same view of the law was taken by Lucas county Ohio circuit court in Insurance Co. v. Luce, 11 C. Ct., 476; 5 Circ. Dec. 210.
    We apprehend that this court will not extend the •operation of this statute beyond the manifest intentions of the legislature. Therefore the opinioh of the Supreme Court of Wisconsin, which was the pioneer state in adopting this character of statute, will be instructive. Reilly v. Ins. Co., 43 Wis., 455.
    The Wisconsin cases are sometimes cited as being authority for the position that such an agreement as the one in the case at bar is of no effect under the valued policy laws, so called. Particularly is Seyk v. Ins. Co., 74 Wis., 67, so cited. 2 Biddle Ins., section 1376, so construes the Wisconsin cases.
    In marine insurance there is actual total loss when the vessel ceases to exist in specie; becomes a mere-‘congeries of planks,’ incapable of being repaired; or whereby the peril insured against it is placed beyond the control of the insured and beyond his power of recovery.”

      “A constructive total loss is where the vessel remains in specie, and is susceptible of repairs or recovery, but at a.n expense, according to the English common law, exceeding its value when restored; and where the insured abandons the vessel to the underwriters.” Insurance Co. v. Sherlock, 25 Ohio St., 50, 64.
    Marine insurance having antedated fire insurance,, many of its rules and doctrines have been borrowed for this branch of the law. At least it appears that, in cases of total loss on buildings the cases involving-this question in marine insurance have been looked to. Consequently the salutary and equitable rule of constructive total loss seems to have been bodily adopted from marine insurance. And it has accordingly been uniformly held that where a building could not be repaired or restored except at a cost equal to or greater f.han the value when restored, the loss was total. We believe that there is no serious contention, but that this is good law.

      Nor do we believe that the statement of the law contained in the opinion of the court in McIntyre v. Ins. Co., 90 Tex., 170, followed by the trial court m this case in his general charge is assailable.

      Seyk v. Ins. Co., 74 Wis., 67, is cited as an authority lor the specific character definition; but note the language of the court from which it appears that either they considered the loss of specific character equivalent to destruction in specie in marine insurance, or that the words are mere surplusage, since it was apparent that all value was gone.
    See also the careful discussion of this case in Ostrander on Insurance, section 310. '
    Another Wisconsin case sometimes considered as approving this rule is Harriman v. Ins. Co., 49 Wis., 71, but the court with considerable particularity states that no part of the building could be used in rebuilding, and that the cost of removing the fragments would be more than their worth when reclaimed. Although quite unnecessary to apply the term to a building in such a condition, it could perhaps do no harm, the absence of value being clearly stated. It is evident that the court considered as the real test of total loss, the loss of value.
    The case of Oshkosh Packing & Provision Co. v. Ins. Co., 31 Fed., 200, comes perhaps nearest to declaring this rule in a construction of the Wisconsin statute, in the following language:
    “But even in that case the term loss of specific character and identity is given some meaning. It occurs evidently in the mind of the court when the building has become a broken mass, or so far in that condition that it cannot be properly any longer designated as a building.”

      2. May on Insurance, section 421a; 2 Biddle on Insurance, sections 1375 and 1376, discuss this subject but refer only to cases herein discussed, giving digests of the cases quoted, and are therefore of no value as references.

      Insurance Co. v. Fogarty, 86 U.S., (Wall 19.), 640, is cited as authority for the specific character rule. But this was a case of marine insurance, and while it apparently approves Judah v. Randall, 2 Caine’s cases, 324, where a carriage was held a total loss although the wheels remained, the decision has reference to the doctrine of actual total loss in marine insurance and in reality, it seems to us, is directed mainly against the idea that absolute, total extinction is essential. The policy covered “machinery.”
    This would indicate that the idea of loss of value for the original purpose was the controlling factor in the decision.
    Another case commonly cited in support of the specific character definition is Corbett v. Ins. Co., 85 Hunn., 250.

      Williams v. Ins. Co., 54 Cal., 442, is also cited as. supporting this proposition.
    The foregoing appear to be the leading cases which-to a greater or less extent seem to support the specific-character doctrine. Whether they do or not, they certainly do not give any reason to believe that to charge a jury as was charged in this case would be sufficient.
    As we have stated, we do not believe that the doctrine of specific character is correct, and in this we are supported by Ostrander on Insurance, sections 310, 311, 312, 313, and by several well considered cases. In Ampleman v. Ins. Co., 35 Mo. App., 308; Ostrander on Insurance, section 314.

      The case of McIntyre v. Ins. Co., 90 Tex., 170, contains as the view of the court as to the proper definition of total loss, the language substantially as given by the trial court in this case in his general charge, and consequently the case of Insurance Co. v. Garlington, 66 Tex., 103, insofar as it differs from the rule laid down in McIntyre v. Ins. Co., cannot be considered an authority.
    The case of Barnard v. Ins. Co., 38 Mo. App., 106, while still using the unfortunate term “identity,” is perhaps not far from the correct standard. 4 Joyce on Insurance, sections 3025-6-7-8-9.
    In other words, the jury might easily have found that a residence with the roof burned off as the record shows was the case with this building, and with one wall partly burned and the floors and interior damaged, had lost its identity and specific character as a residence, and was not a residence; and yet they might have found a large value remaining as a basis for a restoration of the building.
    If two or more instructions are inconsistent and calculated to mislead the jury or leave them in doubt as to the law, it is a cause for reversal. Bitting v. Ten Eyck, 82 Ind., 421; Somers v. Pumphrey, 24 Ind., 231; Somerlot v. Hamilton, 121 Ind., 87.
    An erroneous instruction is not cured by another instruction correctly stating the law, where the first instruction has not been withdrawn from the jury. Wenning et al. v. Teeple et al., 144 Ind., 189.
    IVhere the charge is confusing a new trial should be ordered. Washington Mut. Ins. Co. v. Mut. Ins. Co., 5 Ohio St., 450; White v. Thomas, 12 Ohio St., 312; Railway Co. v. Krouse, 30 Ohio St., 222.

      J. W. Taylor and T. J. Moffett, for defendants in error.
    We maintain, first, that the alleged appraisal agreement and award was a nullity as to all the defendants in error. Section 3643, Revised Statutes; Ins. Co. v. Leslie, 47 Ohio St., 409, 413; Ampleman v. Ins. Co., 559; Mo. App., 308; Baker v. Ins. Co., 57 Mo. App., 559; Reily v. Ins. Co., 43 Wis., 455; Seyk v. Ins. Co., 74 Wis., 67.
    There was no consideration moving to plaintiff below to enter into any such appraisal, as the jury found there was nothing to appraise or arbitrate. It seems to us that the broad rules as laid down by this court in Insurance Co. v. Leslie, supra, the leading case in this state, fully cover this question. Also a most instructive and able opinion is given upon this question in Insurance Co. v. Luce, 11 Ohio C. C. Rep., 476; 5 Circ. Dec., 210; Ins. Co. v. Port Clinton Fish Co., 14 Ohio C. C. Rep., 160; 7 Circ. Dec., 468.
    We claim the finding of the jury under an overwhelming weight of the evidence, as shown by the record, settled that question in the case at bar and established the fact that it was a total loss. The pretense of the counsel to the contrary has nothing to do with the case. These cases rest upon the same footing. The Missouri, Wisconsin, and Nebraska cases and our Ohio cases most ably and fully sustain our claim in the case at bar, and as far as we have been able to learn, there is no published case decided under a similar statute that does not sustain our position. On the contrary there is a long line of able and exhaustive decisions that do sustain us. Joyce on Insurance, Section 3241; Ger. Am. Ins. Co. v. Eddy, 36 Neb., 461; Ins. Co. v. Hull, 51 Ohio St., 270, 271.

      It is not necessary to first attack the appraisement. Ins. Co. v. Romeis, 15 C. C., 697; 8 Circ. Dec., 633.
    . The mortgagees’ claims absorb the whole judgment and still leave more than three-fourths of defendant Taylor’s claim unsatisfied. Therefore the plaintiff in error could not be prejudiced if its contention upon this question was right. The claims of mortgagees must still prevail and the result would be the same to the insurance company, and it could not have been prejudiced. See Ger. Ins. Co. v. Mirick, 38 W. L. B., 172, in which this court on February 5,1897, without report affirmed the circuit court in holding, although assured was barred from recovery it could not affect the right of mortgagees to recover, which they did. Harrington v. Ins. Co., 124 Mass., 126.
    If plaintiff below was barred from recovery it could not affect the rights of mortgagees; they contracted for this securicy and plead their contracts, there was no waiver on their part. The defendant insurance company was in default as to all pleadings of mortgagees in the court below. The judgment is overwhelmingly sustained by the evidence. The policy was written for their benefit, and their conceded claims absorb the whole fund. The mortgagees loaned their money upon the faith of their contracts with the insurance company and assured, and we submit that there is no valid reason why they are not entitled to the benefit of the judgment of the trial court.
    What is a total loss depends upon the conditions in each case. Phoenix Ins. Co. v. Clinton Fish Co., 14 C. C. Rep., 160; 7 Circ. Dec. 468; Joyce on Insurance, section 3029; Williams v. Ins. Co., 54 Cal., 440; Hanberg Ins. Co. v. Garlington, 66 Tex., 103; Harriman v. Ins. Co., 49 Wis., 71; Oshkosh Co. v. Ins. Co., 31 Federal Rep., 200; Rielly v. Ins. Co., 43 Wis., 456;
      Underhill v. Ins. Co., 6 Cush. (Mass.), 440; Biddle on Ins., Vol. 2, sections 1376-1377; Ins. Co. v. Fogarty, 86 U. S. (19 Wall.), 640; Corbett v. Ins. Co., 85 Hume, 250.
    And it was in pursuance of the provisions of the policy that the insured, Drackett, and the insurance company, submitted the loss to the two appraisers selected by them. The provisions and stipulations as contained in this policy above referred to, are common to nearly all insurance policies, especially the “standard form.” Of such a provision for arbitration the Supreme Court of Pennsylvania has said: Assurance Co. v. Hocking, 115 Pa. St. Rep., 408; Yost v. Ins. Co., 179 Pa. St. Rep., 381; Hamilton v. Ins. Co., 137 U. S., 370; Read v. Ins. Co., 103 Ia., 307; Randall v. Ins. Co., 10 Mont., 340 (24 Am. St. Rep., 50); Home Ins. Co. v. Bean, 42 Neb., 537.
    Did the insured, Dracket, by entering into this appraisal agreement, thereby waive the benefits of the provisions of section 3643, Rev. Stat., inasmuch as the loss was total?
    We maintain that he did not. This section of the statute was under consideration by this court in Ins. Co. v. Leslie, 47 Ohio St., 409; Reilly v. Ins. Co., 43 Wis., 449; Santa Clara Academy v. Ins. Co., 98 Wis., 257; Haven v. Ins. Co., 123 Mo., 403; O’Keefe v. Ins. Co., 140 Mo., 558; Eddy v. Ins. Co., 36 Neb., 461.
    We maintain the facts as stated in the opinion in Seyk v. Ins. Co., 74 Wis., 67, are similar to the facts in the case at bar.
    It is true, that the court referred to Thompson v. fns. Go., but on an examination of that case we find that what was said in Reilly v. Ins. Co., supra, was adopted by the court in the opinion in Insurance Co. v. Thompson, without further consideration.

      Counsel cites 2 Biddle Ins., section 1376, as further evidence that the court in Seyk v. Ins. Co., supra, did not consider the question of the award. We fail to find anything in that section which would benefit plaintiff in error’s contention.
    Can any advantage be claimed by the insurance company because the pleadings did not ask to have, the award vacated? We maintain, the loss being total, under section 3643, Revised Statutes, such a claim was not necessary and would have- availed nothing.
    Here an award had been made, and the court was asked to set’it aside on the ground of fraud. Thompson v. Ins. Co., 45 Wis., 388; Am. & Eng. Enc. of Law, 2 Ed., Vol. 13, page 361.
    The award was in no event binding on this defendant in error as mortgagee.
    We maintain that the mortgagor, after making his policy payable to his mortgagee, can no more bind the mortgagee by an adjustment of the amount of the loss than he can bind him by a release of it. Jones on Mortgages, Vol. 1, section 409, page 321; Am. & Eng. Enc. of Law, 2nd Ed., Vol. 13, page 326; Hall v. Fire Assoc., 64 N. H., 405; Harrington v. Ins. Co., 124 Mass., 126; Brown v. Ins. Co., 5 R. I., 394; Insurance Co. v. Olcott, 97 Ill., 439; Georgia Home Ins. Co. v. Stein, 72 Miss., 943; Bergman v. Assurance Co., 92 Ky., 494; Hathaway v. Ins. Co., 134 N. Y., 409; in Hastings v. Ins. Co., 73 N. Y., 141.
    We contend that it has been well settled that a mortgagee to whom a loss is payable under a policy may commence an action directly against the insurance company. Palmer Sav. Bank v. Ins. Co., 166 Mass., 189; Winne v. Ins. Co., 91 N. Y., 185; Eddy,

      Receiver, v. London Assur. Corporation, 143 N. Y., 311.
    The court did not err in giving certain requests to charge the jury.
    In our reply to propositions “A” and “(a)” and “(bl”, we will consider them together, inasmuch as they are so closely connected, and we first take up the question whether there was error in giving requests numbers four and seven. We maintain that the instructions complained of stated the law correctly and are sustained by the following authorities: May on Insurance, section 421a, and 1376; Wood on Fire Insurance, 2 Ed., Vol. 1, section 107, page 273. Joyce on Ins., Vol. 4, sections 3025 and 3029.
    Note the similar language given in the charge in Williams v. Hartford Ins. Co., 54 Cal., 442.
    We do not find any decision questioning the rule as laid down in this case except in the case of McIntyre v.Ins. Co., 90 Tex., page 178, which certainly does not overrule it.
    We have already called the court’s attention to the similarity between section 3643, Revised Statutes, and section 1943, Wise. Revised Statutes, therefore what has been said on the subject of a “total loss” or “wholly destroyed” by the Supreme Court of that state will throw considerable light on the subject. The first case is that of Harriman v. Queen Ins. Co., 49 Wis., 71.
    We claim nothing especial for this case because the facts seem to indicate that the building was burned down to the foundation, and that was injured so as not to be in suitable condition for use in a new building, and the court said the destruction within the meaning of the statute ivas total, but declined to lay down a rule- applicable to other cases. Oshkosh

      Packing & Provision Co. v. Ins. Co., 31 Fed. Rep., 200; Seyk v. Ins. Co., 74 Wis., 67.
    While it was stated that there was no part of the building left standing of any value the decision that the destruction was total was placed on the ground that the identity of the living insured toas so fan- annihilated that it no longer existed as a building.

    The statute was again construed in Lindner v. Ins. Co., 93 Wis., 526.
    The ease of Seyk v. Ins. Co., supra, was referred to by the court as well as Wood on Fire Ins., section 107.
    In a still more recent case decided in 1898 the question of a total loss was considered in an able opinion. St. Clara Female Academy v. Northwestern Nat. Ins. Co., 98 Wis., 257.
    The state of Missouri also has a statute similar to our section 3643, and the courts of that state have several times been called upon to determine what is a total loss within the meaning of the statute; notably, in the cases of Nave v. Home Ins. Co., 37 Mo., 430; Barnard v. Ins. Co., 38 Mo. App., 106; Haven v. Fire Ins. Co., 123 Mo., 403; O’Keefe v. Ins. Co., 140 Mo., 558; Corbett v. Spring Garden Ins. Co., 155 N. Y., 389, which reversed the case in 85 Hun., 250, for the reason that the facts in that case did not warrant a finding of a total loss — the building having been restored for one-third of its original value, the court followed the general doctrine on the subject as to what is a total loss.
   Minshall, J.

The case presents two questions we shall notice: 1. In view of section 3643, Revised Statutes, was the plaintiff bound by the amount fixed by the arbitrators, whether there was a total loss or not? 2. What constitutes a total loss within the meaning of that section, and did the court err in instructing the jury in this particular?

1. We have no difficulty in answering the first question in the negative. The section referred to requires a company insuring any building or structure against fire, to cause such building or structure to be examined by an agent, who is required to make a full description of the building or structure and fix its insurable value; and then provides, that, in the absence of any change increasing the risk without its consent or any intentional fraud on the part of the insured, in case of a total loss, the whole amount stated in the policy on which it receives premiums shall be paid by the company; and in case of a partial loss the full amount of such loss shall be paid. Statutes similar in their provisions are common to many of the states of the Union; and it is generally agreed that they rest on grounds of public policy — the prevention of the mischief incident to over-insurance — and that the insured cannot be held to a waiver of them. Insurance Co. v. Leslie, 47 Ohio St., 409; Seyk v. Insurance Co., 74 Wis., 67; St. Clara Academy v. Insurance Co., 98 Wis., 257; Havens v. Insurance Co., 123 Mo., 403; White v. Insurance Co., 4 Dillon, 177; Insurance Co. v. Eddy, 36 Neb., 461; Reilly v. Insurance Co., 43 Wis., 449; 13 Am. & Eng. Ency. Law, 2d 361. It does not necessarily follow from this that where there is a partial loss, it may not be ascertained by arbitrators; and where there is a clause in the policy requiring arbitration, the parties may be required to conform to it. But where the insured insists that the loss is total, the agreement to arbitrate, or an arbitration had fixing the amount, will not preclude him from bringing a suit as for a total loss. And, in such case, if he establishes that there was a total one, he is entitled to recover the full amount of the policy, notwithstanding the award of the arbitrators was to the contrary, and fixed a less amount as the measure of the loss. But on the other hand, should he fail in establishing a total loss, the amount of his recovery will be limited to the amount of the award, where there was no fraud in obtaining it. The jury was so instructed in this case, and, consequently, there is no error in the charge in this regard.

2. This is the first case in this court presenting the question as to what is a total loss within the meaning, of the section above referred to. For while the subject of a total loss is discussed in Insurance Co. v. Sherlock, 25 Ohio St., 50, it was a case of marine insurance complicated with the question of a constructive loss, known to that kind of insurance. It has, however, received the consideration of the courts of other states, having statutes similar to our own, and whilst there is some difference in modes of expression, there seems to be no substantial difference of opinion. It seems to be agreed that it is not necessary to constitute a total loss, that all the material composing the building should be destroyed; it is sufficient, though some parts of it remain standing, that the building has lost its identity and specific character as a building, the insurance not being upon the material composing the building but upon the building as such. When the loss by fire is such that its character as a building is destroyed, and it remains simply as a mass of ruins, parts of which may remain standing, but of no value in repairing or rebuilding the structure, though something might be realized for the material by removing it, the loss is regarded as total. Thus in Joyce on Insurance, section 3025, it is said “In case of an insurance upon a building under a fire risk, tbe first principle is, that it is tbe building, and not the materials of which it is composed, that is covered, and therefore total loss does not mean necessarily an absolute extinction of every part and parcel of the property. In such risk there is a total destruction and loss when, by the peril of fire, the building becomes a mass of ruins and rubbish, and loses its specific character, and ceased to be a building, becomes unfit for use as such, without regard to the fact that even some parts may be left entire, or that a large portion of the building be left standing and not actually destroyed.” See also, Wood on Insurance, section 107; May on Insurance, section 421a. Williams v. Insurance Co., 54 Cal., 442; Seyk v. Insurance Co., 74 Wis., 67; Havens v. Insurance Co., 123 Mo., 403.

The general charge was quite liberal to the defendant, more so probably than it should have been. The court said to the jury: “There can be no total loss so long as a remnant of the structure standing, the stone foundation being disregarded, is reasonably adapted for use as a basis upon which to restore the building to substantially the condition in which it was before the injury by fire. And whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question before the injury, would in proceeding to restore the building to substantially its original condition, utilize such remnant as a basis for such reconstruction.”

But it is said this is not consistent with instructions 4 and 7 given at the request of the plaintiff. This may be and, as to the seventh, is probably so, but we regard these instructions as having been properly given. They are as follows:

4. A policy of insurance is upon the building as. such and not upon the materials of which it is composed. If you find that the identity and specific character of the insured building was entirely destroyed by fire, then you must find for the plaintiff.”

7. “Although you may find that after the fire a large portion of the four walls were left standing, and that certain parts of the building were left untouched by the fire, still if you find that the building has lost its identity and specific character, you may find that the building was totally destroyed.”

These charges state in a general form what seems to be the received law applicable to the case. The criticism is that the court should have defined what is. meant by “identity” and “specific character.” But taken in connection with the general charge, there could have been no misapprehension as to the meaning. The terms are not obscure and convey as well as words can, the idea to be expressed by them. A building loses its identity and specific character, when it has been so far destroyed by fire that it can no longer be called a building, and the portions that remain cannot be utilized to advantage in rebuilding-it. That something might be realized out of portions that remain, for other purposes, is not material.

As to what will constitute a total loss in a given case, must, within the meaning of the statute, necessarily be, to a «great extent, a question of fact for the jury to determine under proper instructions from the. court. What remaining parts could be made available in rebuiding can only be determined by exercising a sound discretion in the light of the evidence. Two courts with power to weigh the evidence have don© so, and sustained the verdict; and it can hardly be expected that this court, not required to weigh the evidence, will disturb the verdict, where the jury was properly instructed. Much of the evidence tends to show that the building was reduced to a mere wreck, and that nothing remained that could be utilized in rebuilding it.

We see no error in the admission of evidence. The mortgagees being directly interested and parties to the suit, had a right to show what the loss was. And as to the letters of Taylor, they simply tended to show that he had not consented to any waiver by submission to arbitration; and whether he had or not was immaterial.

Judgment affirmed.


author: SlIAUCK, O. J,

text:
    Hollrah v. Lasance et al.

      Will — Order of prolate court admitting paper as will — Not reviewable on petition in error — Refusal to admit is reviewable,

    An order of tlie probate court admitting a paper to probate as a last will and testament is not reviewable on petition in error, though an order refusing to admit such paper to probate is reviewable. (Missionary Society v. Ely, 56 Ohio St., 405, distinguished from Hosier v. Harmon, et at, 29 Ohio St., 220.)
    (Decided May 22, 1900.)
    Error to the Circuit court of Hamilton county.
    On December 7, 1897, upon application by Herman Lasance, due notice thereof having been given to William Hollrah, the only person interested in resisting the order, the probate court of Hamilton county made an order establishing and admitting to probate the lost last will and testament of Frederick Augustus Lasance, its finding being:

      “That in his lifetime, and when of full age and sound mind and memory, and not under restraint, he made a last will and testament, and duly executed the same according to the law in force at that time. That said last will and testament was in existence and unrevobed subsequent to the decease of said testator; that the same has been since lost; that a true, full and correct copy of said will has been produced in open court; that the contents of said will are correctly and truly shown in said copy; and that the court doth hereby find and establish the contents of said will to be as stated as follows:
    (Then follows a copy of the will.)
    A bill of exceptions was taken setting out all the evidence offered in the probate court. A petition in error was filed in the common pleas court praying for a reversal of said order because of error in the admission of evidence in support of the application, because the evidence was not sufficient to justify the order, and because tbe probate court was without jurisdiction to make it.
    Herman Lasance and others interested in sustaining the order moved the court of common pleas to dismiss the petition in error upon the ground that the order of the probate court was not reviewable on petition in error. This motion the common pleas court overruled; but upon consideration of the record it affirmed the order of.the probate court and rendered judgment against the plaintiffs in error for costs.
    Plaintiffs in error then filed a petition in error in the circuit court for the reversal of the judgment of the court of common pleas. The circuit court, being of the opinion that the common pleas court was without jurisdiction to review the order of the probate court, and that it had therefore erred in affirming the order and in rendering judgment against the plaintiffs in error for costs, reversed the judgment of the common pleas and remanded the cause to that court with the direction to dismiss the petition in error which had been there filed. The plaintiffs in error, still insisting that the order of the probate court shall be reversed, file their petition in error here.

      George TV. Hengst and TV. A. Hicks, for plaintiff in error.
    Plaintiff in error contends (1st) that the circuit couid erred in finding 'that the common pleas court had no jurisdiction and ordering it to strike petition in error from the record. (2d) The circuit court erred in not finding that there was no competent legal evidence to probate this will, and therefore not reversing the probate and common pleas courts.
    As to the jurisdiction, we claim that error lies to this proceeding because same is an order affecting a substantial right in a “special proceeding,” and section 6707, Revised Statutes, provides, - * * “an order affecting a substantial right * * * made in a special proceeding * * * may be vacated, modified or reversed.” * * *
    It needs no argument to show that the order of the . probate court, which takes the property which plaintiff in error would inherit from him and give it to others, is an order affecting his. -substantial right. That this is a special proceeding, and error lies. Missionary Society v. Ely et al., 56 Ohio St., 405.
    Again, it seems that the case of Mosier v. Harmon, 29 Ohio St., 220, if not directly overruled by-the conclusion of this case (56 Ohio St., 405); its value as. an authority for the defendants in error is greatly weakened, because the latter decision is entirely inconsistent and can not be reconciled with the former,. and the latter seems to be in harmony with the principles of justice and right.
    In. the restoring of a lost will and testament, we maintain that the probate court acts in a dual capacity, viz.:
    First — In deciding whether or not such a will ever existed and was in existence after the death of such testator, and was duly attested and executed, and was lost, spoliated, or destroyed subsequent to his death.
    Second — If the court should find that there was such a will and in existence after the death of the testator, then it is the duty of the court to inquire into the facts wb ether or not, that at the time of executing the same, the testator was of full age, and of sound mind, and memory, and not under any restraint.
    In the case before us, we only have to deal with the first proposition. Does the testimony show, viz.:
    First — Was there ever such a will as that as is set forth in the copy?
    Second — If so, did it exist after the death of Frederick Augustus Lasance?
    Third — If so, wTas it duly attested and executed?
    These are jurisdictional facts, and must exist before the court of probate can entertain the subject matter of probating a will.
    Sections 5944 to 5948, Revised Statutes, provide for the admission of lost wills to probate.
    These are special provisions and must be followed, •as prior to the enactment of these sections there was no authority in the courts to admit a lost will to record. Morning Star v. Selby, 15 Ohio, 345; Sinclair’s Will, 5 Ohio St., 291.
    In Bougart v. Miller, 26 Ohio St., 541, the Supreme Court alloxmd error to probate court in an application similar to this case. The Supreme Court held that the provision of the statute had not been complied with, because proper notice was not given, i. e.,. the court did not have jurisdiction because the-statute was not followed. Want of notice can not be more fatal to jurisdiction than want of a subject matter, viz.: the existence of the will after death; and this question is raised by the record herein, and plaintiff contends that record shows no jurisdiction, because no will existed after testator’s death, and claim that this court has authority to examine record forth is question.
    But under the provisions allowing the probate of a lost or destroyed will we have no section similar to section 5927, because the signatures cannot be produced. For that reason we contend it is necessary that the witnesses must be produced and their testimony taken. If they are dead there is no way in-which such a will can be established. It would be too vague and uncertain proof, and would open the door-to too much fraud and misconduct, which could not. be detected.
    The fact that a will is lost does not do away with proof of compliance with the statutory requisite of execution; these must be proved as if the will, were in existence. Section 5946, Revised Statutes; Grant v. Grant, J. Sandf. Ch., 235 (N. Y.); Mercer v. Mackin, 14 Bush., 434 (Ky.); Chisholin v. Ben, 7 B. Mon., 408 (Ky.); Davis v. Sigourney, 8 Met., 487 (Mass.).
    The existence, loss and due execution of the original will must be first proved. Am. and E. Enc. of Law, Vol. 13, p. 1091.
    Due execution of a lost will must be shown, just as in case of an existing will offered for probate. Redfield on Will, Vol. 3, p. 15; Jarmin on Will, p. 92, 6th Ed.; Collyer v. Collyer, 4 Dem. N. Y., 53, 17 Abb. (N. Y.), N. Cases, 328.
    O. F. Dwyer and A. M. Warner, for defendants in error.
    Our contention is, that the decision of the circuit court should be affirmed, upon the authority of Mosier v. Harmon, 29 Ohio St., 220. The jurisdiction of the probate court was properly invoked, and the proceedings therein were regular, and in compliance with the statute. Notice, as required by section 5945, Revised Statutes, was duly given. Evidence was presented tending to show the due execution of the will, and that the testator was of sound mind and memory at the time he made same; that the will was lost subsequent to the death of the testator; that it was in existence after the death of the testator unrevoked, and in the hands of counsel and the contents were shown by an exact copy of said will, put in a solemn contract under seal, settling the personal estate of the testator, out of court, as between his widow and his brothers and sisters. This contract was carefully prepared by eminent counsel, and carried out by the widow. Under these circumstances it is apparent that the principles announced in Mosier v. Harmon, supra, fully apply, if the same rule applies in this ;ase, as in the case of other wills.
    Section 5948, Revised Statutes, last clause, provides as to the effect of lost wills when established and probated.
    The only mode then of contesting this will is that provided in section 5858, Revised Statutes, by civil action in common pleas court.
   SlIAUCK, O. J,

Jurisdiction to admit to probate any lost will under the circumstances found in this case is conferred upon the probate court by sections 5944 to 5948 of the Revised Statutes. The effect of the order made by the probate court in the exercise of the authority so conferred is defined in section 5948: “The contents of any such last will and testament so found, established and admitted to probate as aforesaid, shall be effectual to pass real and personal estate and for all other purposes as if the original will had been admitted to probate and record, according to the provisions of this title; and such wills shall, in all respects, be governed by the laws in force relating to other wills not only as relates to the contest of the same, but in all othér matters.”

It seems quite clear from the provisions of this section that an order admitting a lost or spoliated will to probate can be annulled or revoked in no other manner than that prescribed with respect to orders admitting to probate wills not lost or spoliated. It is provided in section 5858 that “a person interested in a will or codicil admitted to probate in the probate court, or the court of common pleas on appeal, may contest the validity thereof in a civil action in the court of common pleas of the county in which such probate was had.” With reference to the same subject it is provided in section 5933, Revised Statutes, that “If no person interested [shall] within two years after probate liad, appear and contest the validity of the will, the probate shall be forever binding,” with a saving in favor of persons under disabilities.

These provisions require the conclusion that the contest in the court of common pleas authorized by section 5858 is the only mode of revoking an order admitting a will to probate. These sections were so construed in Mosier v. Harmon et al., 29 Ohio St., 220.

It is said, however, that a different view of the subject was taken in Missionary Society v. Ely, 56 Ohio St., 405. The cases are distinguished by the fact that the order which we there held to be subject to review on a petition in error was an order refusing to admit an alleged will to probate. The importance of this distinguishing fact appears when it is observed that the statute providing for the contest of a will has no application to a case in which the will is not admitted to probate. An order admitting a will to probate brings the case within the exclusive remedy by contest ; while an order refusing to admit it excludes the case from the statute which prescribes that remedy, and this ground of distinction Avas pointed out in the •case lastly cited.

Judgment affirmed,


author: By the Court :

text:
    The Riverside Rubber Co. v. The Midland Man’g Co. et al.

      Bill of exceptions — Entitled to consideration by reviewing court, when- — Judge cannot extend time for allowance and signing bill, when.

    1. In order to entitle a bill of exceptions to be considered by a reviewing court, it must be shown by a proper journal entry that the bill was ordered made a part of the record.
    2. Where it appears by the bill of exceptions, supplemented by the journal entry, that the bill was not presented to the trial judge until the fiftieth day after the overruling of the motion for a new trial (the judge not being absent), the judge is without power to extend the time for the allowance and signing of the bill and his subsequent allowance and signing of the same is without legal effect.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Sandusky county.
    In the common pleas the plaintiff’s motion for new trial was overruled June 28, 1897, and judgment for defendant rendered, to which plaintiff excepted, and plaintiff wras given fifty days in which to prepare, file, have allowed and signed its bill of exceptions, and the journal of the term was ordered kept open for fifty days for that purpose. The bill was presented to opposite counsel in proper time, but was not presented to the trial judge until August 17, 1897, being fifty days after the overruling of the motion for new trial, at which time the judge extended the time for examination and signing of the bill of exceptions ten days, and endorsed the same on the bill. On August 23, 1897, the judge allowed and signed the bill. Thereupon, on the same day, (being in the vacation of the court between the April term and the September term), an entry, directed by the trial judge, was. placed upon the journal as follows: “Be it remembered that on this 23d day of August, 1897, this cause came on for hearing upon application for allowance and signing of the bill of exceptions heretofore prepared and submitted to the court, it being agreed by counsel and the court finding that said bill of exceptions was presented by counsel for plaintiff to opposing counsel on the 7th day of August, 1897, at 5:30 o’clock P. M., and not before, and was presented to Hon. S. A Wildman, trial judge, on the 17th day of August, 1897, and not before, (said judge not having-been absent from said district at any time after said trial), and said court having, on the said 17th day of August, 1897, for the purpose of examining and signing said bill of exceptions, extended the time ten days, which extension was duly endorsed upon said bill of exceptions at the time, and the court having examined said bill of exceptions and finding the same to be a true bill of exceptions, did on the 23d day of August allow and sign the same, and ordered it to be filed but not spread upon the journal, to which extension of' time and the endorsing of the same, and to the allowance and signing of said bill, defendants by their counsel then and there duly excepted.”
    The bill of exceptions itself shows that it was signed on August 23, 1897, and it also shows that it was presented to the judge “at the time and in the manner stated in the journal entry thereof.”
    In the circuit court defendant interposed a motion to strike the bill of exceptions from the files, and the-court “being fully advised in the premises, and having-heard the arguments of counsel,” ordered the bill stricken from the files, and the cause being heard on the petition in error, transcript and original papers and pleadings, the judgment below was affirmed. And the plaintiff now and here alleges that the order striking the bill from the files was erroneous.

      Gilbert E. Stewart; D. K. Watson and Chittenden é Chittenden, for plaintiff in error.
    The plaintiff in error claims that the circuit court erred in striking plaintiff’s bill of exceptions from the files, and in affirming the judgment of the court below, for the following reasons:

      a. The action of the trial judge in vacation was not subject to review by the circuit court.

      b. A judge in vacation cannot authorize the embodiment in an entry of a finding of facts. The record shows that this motion was not heard upon evidence. The record further shows that the bill of exceptions was signed by the trial judge within the time fixed by statute as extended by him in conformity to the statute, and this is conclusive. Heddleson v. Hendricks, 49 Ohio St., 297.
    c. If the finding of facts can be considered, then all the facts there found must be considered, and they show that the bill of exceptions was signed in time.
    1. The bill of exceptions was allowed and signed during vacation by the judge at chambers. Such action is the action of the judge and not of the court, and is not reviewable by the circuit court. Dwelle v. Wilson, 14 O. C. C., 551; 7 Circ. Dec., 611; Atwood v. Whipple, 48 Ohio St., 808. To obtain review of such action a motion should be immediately filed in the common pleas court asking to have such bill of exceptions stricken from the files. The action of the court upon that motion would be properly reviewable by the circuit court.
    2. There is no statutory provision for making any such finding of facts as is contained in the journal entry allowing the bill of exceptions. Section 5302, Revised Statutes, authorizes only an entry upon the journal of the allowing and signing of a bill of exceptions. There is no authority to make any finding of facts except by virtue of section 5205, which section applies only to the action of a court. There is no provision whatever authorizing a judge at chambers to make a finding of facts upon the presentation of a bill of exceptions for allowance. The finding of facts contained in the journal entry of allowance of the bill of exceptions is therefore imprdperly in the record and affords no subject of action by the reviewing court. Railway v. Thurstin, 44 Ohio St., 525; Lockhart v. Brown, 31 Ohio St., 431.
    3. The circuit court of Lucas county, have said in Dwelle v. Wilson, supra, that there is no authority for endorsing upon the bill of exceptions the time when it is submitted to opposite counsel and to the court, and that any such endorsement furnishes no evidence at which a reviewing court may look. The circuit court, however, on p. 555, do say, “That they do not say that evidence of it may not be preserved in a proper method.” The only proper method we think is by the introduction of such evidence upon the hearing of a motion in the common pleas court to strike the bill of exceptions from the files,
    4. Only such original papers as are necessary to exhibit the errors complained of are required to be filed with the petition in error. The errors shown by the contents of the bill of exceptions are not now in review. Can the bill of exceptions then exhibit any error complained of? There being no authority to endorse upon the bill of exceptions the time when it was submitted to opposite counsel and to the court, such endorsement furnishes no evidence at which a reviewing court may look.
    5. The remaining question, as presented by the record, is: Has the trial judge jurisdiction to allow and sign a bill of exceptions when the same has been presented to opposite counsel within the time required by the statute, but is not presented to him ■until after the expiration of forty-five days from the ■overruling of a motion for a new trial?
    No case presenting precisely this question has been before this court, so far as we have been able to learn, and, therefore, this precise question has never been presented for decision, nor decided by this court. But we maintain that the judge has such jurisdiction, and that the conclusion is fairly deducible from the decided cases. Neuman v. Becker, 54 Ohio St., 323; Long v. Newhouse, 57 Ohio St., 348; Pugh v. State, 51 Ohio St., 118. Tn all the cases in which this court has construed the provisions of section 5302, in regard to the time within which bills of exceptions should be presented for examination, allowance and signing the facts showed that the bill of exceptions was not presented to opposite counsel until after the expiration of the time fixed by la,w. In that regard, which this court has held to be the main purpose of the enactment of this statute, the case at bar differs from these cases, Tor the bill of exceptions was presented to opposing counsel, as required by the statute. Thus the rights of those whom the statute sought to protect, were fully conserved in the case, and they could not have been prejudiced by the action of the court thereafter. The statute was enacted to preserve rights and not to do injustice or to deny rights by a technical violation of its words and not its spirit, where no prejudice can or does result. As said by Bradbury, J., in Weaver v. R. R., 55 Ohio St., 491, at page 496, “the right to a new trial ought not to be defeated by placing too strict a construction on the section of the statute relating primarily to the time and manner of taking bills of exception.” In Pugh v. State, supra, the opinion very clearly sets forth, the reasons for the adoption of the amendment of 1892, and we desire to call special attention to that part of the opinion. In substance it is that the amendment of section 5302, was intended to remove the enforcement of the rights of the successful party to examine the bill, and be heard before its approval, from the region of courtesy and discretion, and place it on the solid ground of positive mandatory rule, and at the same time relieve the judge of the embarrassments attending the former practice. This purpose is deducible from the plain import of the words used, construed in the light of the evils referred to. The rule thus established is a plain one. It treats all alike, is easily understood by all, and, under ordinary conditions, will enforce itself. It tends to secure substantial justice in the correction of abuses of the former practice.”
    In short its purpose was to secure by mandatory legislation ample time for opposite counsel and the court to examine the bill of exceptions; to opposing counsel at least five days. So far as the trial judge is concerned, the second proposition of the syllabus is to the effect that the authority given by the second proviso of section 5302 to the trial judge to extend the time for signing not exceeding ten days beyond the expiration of the fifty, is for the convenience of the judge, to enable him to examine, sign and allow7 the bill, but it wms not necessary to a decision of the case for the court to determine wdiether the trial judge may waive the requirement that the bill be presented to him not less than five days before the expiration of the fifty days where the bill has been submitted to him within the fifty days, and had beep theretofore submitted to opposite counsel within the proper time.
    It is a principle of law well settled in Ohio, that in the construction and interpretation of a statute, the object of the statute, and the mischief which it was designed to guard will be looked to. School District v. Dilman, 22 Ohio St., 194. Another equally well settled principle of law in Ohio is that, “It is the duty of courts in the interpretation of statutes, unless restrained by the letter, to adopt that view which will avoid absurd consequences, injustice, or great inconvenience, as none of these can be presumed to have been within the legislative intent.” Moore v. Given, 39 Ohio St., 661, 663. The mischief sought to be guarded against by this provision of the statute, was, in the language of the court in Pugh v. State, supra, “to remove the enforcement of the right of the successful party, to examine the bill, and be heard before its approval, from the region of courtesy and discretion, and place it on the solid ground of positive mandatory rule, and at the same time relieve the judge of the embarrassment attending the former practice.”
    This was accomplished by the requirement that the bill should be submitted to opposite counsel at least ten days before the expiration of the fifty days; under the provisions of the statute, they could not demand more than five days for this examination. All of this has.been done in this case; opposite counsel have had their .full time for the examination of the bill, and made no objection to it; their rights have been fully protected, and therefore they cannot be prejudiced, provided the bill of exceptions is signed within the fifty days allowed by the statute or the extension allowed by the court. The other provisions cannot concern opposite counsel, for it is for the protection and convenience of the trial judge. The requirement of the statute is made so that he may have ample time to examine the bill before signing it. If he has ample time, what prejudice can follow to anyone? If the bill is not presented to the trial judge at least five days before the expiration of the fifty days, we do not doubt his right to refuse to sign it on that ground. But if he decides to waive that right, and either examines the bill during the remaining time, or extends the time by proper endorsement, no rights of defendant in error or his counsel have been prejudiced. As this court said in Pugh v. State, supra, this extension of time is “for the convenience of the judge to enable him to examine, sign and allow the bill.” Being for the convenience of the judge, if he chooses to waive the statutory time for handing to him, reserving ample time for examination, who can be prejudiced thereby? Is this not a case where the broad and liberal spirit of the code which says: (Revised Statutes, section 5115) “The court in every stage of an action, must disregard any error or defect in the pleadings- or proceeding which does not affect the substantial rights of the adverse party,” should be made a living reality?

      Sehoyn W. Otoen; C. P. & L. W. Wickham; Garver & Garver, and Love & GuTbert, for defendant in error.
    We deny the statement of counsel that the record shows that the motion in the circuit court to strike the bill of except!ons from the files was not heard upon evidence. In fact it was heard upon evidence, including the journal entry, the original bill of exceptions, and the affidavit of Judge Wildman. And we contend that the action of the circuit court is not reviewable here for the want of a bill of exceptions. None was taken to the court’s action on the motion.
    Counsel for plaintiff in error insist that the journal entry cannot be consulted to ascertain what order was made with respect to the bill because the action of the trial judge in vacation was not subject to review by the circuit court. A sufficient answer is that the circuit court did not attempt to review that action on error, nor was it invited to do so. What that court did do, and what it had the most unquestioned right to do, was to determine whether or not there was in that court any bill of exceptions, and it found there was not.
    Counsel further insist that a judge in vacation cannot authorize the embodiment in an entry of a finding of facts. We are not called upon to debate this proposition, as it is stated, but certain it is that the journal entry, by whomever authorized, becomes in legal effect the act of the court, and there must under section 5302, be an entry of the allowance and signing of the bill within the time fixed for such allowance and signing. Surely the journal entry is conclusive as to this statutory duty enjoined on the court. Hill v. Bassett, 27 Ohio St., 597; Railroad Co. v. Kirchner, 6 O. C. C., 211; 3 Circ. Dec., 420; Baldwin v. The State, 6 Ohio, 15; Acheson v. Bank, 8 Ohio, 117. It must appear from the record outside of the bill that the bill was in due time tendered to and allowed, signed and sealed, and ordered made part of the record; if the entry fails to show this it is not sufficient. Now this journal entry of which complaint is made, does fail to show that the bill of exceptions was tendered to the trial judge in time, and fails to show that it was allowed and signed in time. In fact-it shows affirmatively that it was not tendered to the trial judge in time nor allowed and signed by him in time. What does it matter whether the failure to tender the bill of exceptions to the trial judge in time, or his failure to allow or sign it in time, appears affirmatively or negatively? It is the office of a journal entry of the kind in question to show affirmatively that the bill- of exceptions was tendered to the trial judge in time and was also allowed and signed by him in time. If it fails to perform this office it is fatal to the bill of exceptions; that is, the bill does not become a part of the record. Such failure is a direct violation of tbe provisions of the section of the statute already referred to, because the statute implies that the allowance and signing must be of a bill of exceptions tendered in time.
    None of the cases cited by counsel for plaintiff in • error sustain their contention, and alb the recent d** cisions of this court compel an affirmance of the judgment below. Pugh v. State, 51 Ohio St., 116; Neuman v. Becker, 54 Ohio St., 323; Long v. Newhouse, 57 Ohio St., 348.
    The record shows beyond question that the motion for a new trial was overruled June 28, 1897; it also shows that the bill of exceptions was submitted to the trial judge August 17,1897 (fifty days after the overruling of the motion) and not before. The effort to perfect the bill, therefore, failed.
    Beyond this the entry fails to show that the bill was •ordered to be made a part of the record. And this fact conclusively establishes that the plaintiff in error had no bill of exceptions before the circuit court.
   By the Court :

We are of opinion that the order of the circuit court sustaining the motion to strike the bill of exceptions from the files Avas not erroneous.

Passing the question whether, in the absence of a shoAnng of the evidence on which the circuit court acted, its order is here reviewable, sufficient, we think,, appears by the record to support that holding.

It sufficiently appears by the statements of the bill itself, supplemented by the journal entry, that the bill was not presented to the trial judge Avithin the time required by statute. Not having been so presented in proper time, the judge had no jurisdiction in the matter, and was without authority to either sign and alloAv the bill or to extend the time for its allowance and signing. Neuman v. Becker, 54 Ohio St., 323; Long v. Newhouse, 57 Ohio St., 348.

But there is another fatal objection to the bill. There is no journal entry showing that it was ordered made a part of the record. Baldwin v. The State, 6 Ohio Rep., 15; Acheson v. Bank, 8 Ohio Rep., 117; Bill v. Bassett, 27 Ohio St., 597; Felch, Assignee, v. Hodgman, 62 Ohio St., 312.

Judgment affirmed.