author: Price, J.

text:
    Swing, Trustee, v. Rose et al.

      Dissolution of mutual fire insurance company — Court may assess premium notes of policy-holders, when — Proceedings to collect assessment — Question of co-partnership in interest in policy — Defendants may not state their opinion, when — Assessment made by court does not determine who are policy-holders, when— Insurance law — Cotirt proceedings.

    1. In a judicial proceeding under the statute to dissolve a mutual fire insurance company and to wind up its business affairs, to which proceeding the corporation is a party defendant, the court is authorized, when necessary, to decree an assessment upon the premium notes executed by policy-holders for the purpose of paying liabilities of the company which accrued while the policies and premium notes were in force, and such decree as to the necessity for, and the amount of the assessment, is binding upon the policy-holders, although they, as individuals, were not parties to the proceeding when the decree was made. ' In respect to the assessment and the necessity therefor, they were represented by the corporation.
    2. In the trial of an action brought by a trustee appointed by the court in said proceeding against the defendants as members of a 'co-partnership to collect an assessment made by the court, in which action an issue is joined between the parties as to whether the policy of insurance was held by the defendants as members of the co-partnership, it is error for the court to permit the defendants to state their mere opinions.
    3. Where in said action it is established that the policy of insurance had been issued and accepted on or about the first day of October, 1888, for a term of at least two years, and that the property insured had been totally destroyed by fire on or about the 22d day of February, 1889, and that the loss was paid on or about the Jth day of July, 1889; and, further, that the assessment, for the collection of which suit was brought, was made on the nth day of June, 1901, it was error for the court to charge:
    “While the assessments made and ordered by said court are conclusive, it does not undertake to determine who are policy-holders, and you are not concluded by it from determining whether or not the defendants were such when the decree was entered; and if they were not, and you so find from the evidence under these instructions, including the special requests given you in charge before argument, then you will not inquire further, and your verdict will be'for defendants.”
    (No. 9669
    Decided December 11, 1906.)
    Error to the Circuit Court of Coshocton County.
    The Union Mutual Fire Insurance Company of Cincinnati was incorporated as such on the first day of June, 1887, under Sections 3634 to 3658, Revised Statutes of Ohio, and carried on a fire insurance business on the mutual plan during the years 1888, 1889 and at least a part of 1890. On the 18th day of December, 1890, on account of its failure to meet its legal obligations and. discharge its duties under the law, this court dissolved the corporation and appointed the plaintiff in error trustee for the creditors and policyholders of said company. In that action this court made certain orders and decrees with reference to the assets of tlie company and the liability of its policy-holders, and one of the orders or decrees entered June 4, 1901, made an assessment against all persons who held policies of insurance in said company on and between April 25, 1889, and December 18, 1890, according to the date and amount of liabilities during certain periods while said policy-holders were liable. The decree classified the liabilities as to their date of maturity and also the premium notes liable to be assessed and the rate of assessment for each class to meet said liabilities.
    The trustee, now plaintiff in error, claims that the defendants below, who are now defendants in error, had held a policy of $2,000 in said company from October 1, 1888, to December 19, 1890, on an agreed annual premium of $60, and that under said decree and the classification made therein the defendants were assessed and liable to pay to the trustee the sum of $279.17. By registered mail, the defendants were notified of this assessment, and that they were required to make payment within thirty days from date of notice.
    These parties failed to comply with the notice and the trustee commenced an action in the court of common pleas to recover said amount with interest thereon from December 15, 1902. The action was commenced January 19, 1903, and the petition, in addition to the foregoing facts, alleged that the defendants, William E. Rose, John J. Rose, Marion Rose and Walter Rose, in the years 1888, 1889 and 1890, were partners doing business in the firm name of “The Heirs of Daniel Rose/5 and that as such they received and accepted from said company its policy of insurance numbered 918 for $2,000 on their property, insuring it against loss by fire and lightning; that they held the policy in force from October 1, 1888, to December 19, 1890, and that the contingent liability to assessment under the laws of Ohio and the said decree of this court is five times the agreed annual premium of $60, in all $300; that defendants5 proper assessment under said decree to pay the losses and expenses of said company during the time their property was insured was and is $279.17. It is also alleged that Walter Rose died in the year 1902, leaving no estate.
    The defendants, William E. Rose, John J. Rose and Marion Rose, answered, alleging that Anthony R. Rose, Charles F. Rose and Walter Rose were not made defendants, although they are part of the heirs of Daniel Rose, deceased, and had an interest in said policy, received their share of its insurance and are liable to pay their share of liability, if any liability exists.
    The plaintiff, by an amendment to the petition, made Charles F. Rose, a resident of Kansas, and Anthony R. Rose, a resident of Colorado, parties to the case, but no service was obtained upon either of them. The amendment makes an averment that plaintiff does not know whether said persons were partners under said firm name, or were only jointly interested in said policy of insurance, as heirs at law of Daniel Rose, deceased.
    The defendants, William E. Rose, John J. Rose and Marion Rose, answered the petition and the amendment thereto, setting up four defenses, the first of which is a reiteration of the absence from the case of Anthony R. and Charles F. Rose, who have not been served with process,, and asserts the death of Walter Rose, which was also averred in the petition. The second defense admits that they are sons and heirs at law of Daniel Rose, deceased, and they deny each and every other allegation made in the petition and amendment thereto.
    The third defense asserts that, on the first day of October, 1888, William E. Rose, as administrator of the estate of Daniel Rose, took out a policy of insurance for $2,000 in said company, and thereby effected insurance with it for the benefit of the estate of Daniel Rose, deceased, for a period of four years; that said policy was can-celled by the company on February 22, 1889, by reason of fire which resulted in a total loss of the insured property, and on the 5th day of July, 1889, a settlement was made with the company, in which said company paid W. E. Rose, as administrator of the estate of Daniel Rose, deceased, $1,450 in full settlement of their liability upon said policy. They then deny that they took out the policy as partners or joint owners.
    The fourth defense reiterates the averments of each of the other defenses, and sets up a settlement made with the officers and agents of the company, whereby the amount of $1,450 was accepted in satisfaction of the liability of the company, and that all present and future liability on the premium note or notes w.as released as part consideration for said settlement and the premium notes surrendered, and for this reason the defendants are not liable on any assessment made by the court.
    The reply of the trustee denies the settlement-set up in the answer, although it admits the payment of the $1,450 in full of the claim under the policy, but that their liability as policy-holders was not settled or released, nor the premium notes cancelled. The reply then asserts that the insured having received payment for a total loss, remained liable to assessment for debts of the company incurred up to the end of term for which defendants were insured, to-wit, December 19, 1890.
    On these issues, the case was tried to a jury and its verdict was rendered for the defendants. During the progress of the trial, the plaintiff objected to certain testimony offered and introduced by the defendants and excepted to the admission of the same.
    Special instructions to the jury were asked by the plaintiff, some of which were .refused and exceptions taken.
    There is an exception to the general charge. Judgment was rendered on the verdict in favor of the defendants, which was. affirmed by the circuit court. Error is prosecuted in this court to reverse both judgments.

      Messrs. Nicholas ■ & Merrell; Mr. Smith W. Bennett and Mr. Patterson A. Reece, for plaintiff in error, cited and commented upon the following authorities:

      Hone & Bokee, Recrs., v. Boyd, 1 Sand. (N. Y.), 481; Mansfield et al., Trustees, v. Houston, 35 W. L. B., 182; 10 Cir. Dec., 807; 58 Ohio St., 690; Bangs v. Skidmore, 24 Barb. (N. Y.), 32; 21 N. Y., 139; Philbrook v. New England M. F. Ins. Co., 37 Me., 137; Boot & Shoe, etc., Ins. Co. v. Melrose Society, 117 Mass., 200; N. H. Mutual Fire Ins. Co. v. Rand, 24 N. H. (4 Foster), 436; Swamscot Machine Co. v. Partridge et al., Trustees, 25 N. H., 369; Mutual Fire Ins. Co. v. Phoenix Furniture Co., 108 Mich., 170; 66 N. W. Rep., 1095; Langworthy v. Garding, 74 Minn., 325; 77 N. W. Rep., 207; Commonwealth Mutual Fire Ins. Co. v. Hayden et al., 61 Neb., 457; 85 N. W. Rep., 443; Stilwell, Exrx v. Carpenter et al., 59 N. Y., 423; Swing, Trustee, v. Eagle Stave Co., 50 O. L. B. (Bull.), 448; Davis, Recr., v. Sharp, 2 W. L. M., 40; Doane v. Millvale, etc., Fire Ins. Co., 43 N. J. Eq., 522; Bradford Belting Co. v. Gibson, 68 Ohio St., 448; Wadsworth et al. v. Davis, Recr., 13 Ohio St., 123; Joyce on Insurance, Vol. 2, Sec. 1268; Union Mutual Fire Ins. Co. v. Spaulding, 61 Mich., 77; 27 N. W. Rep., 860; Borgraefe v. Knights of Honor, 26 Mo. App., 218; Swing v. Humbird, 101 N. W. Rep., 938; Section 1, Art. IV, Constitution of the United States; Price et al. v. Coblitz et al., 21 C. C., 732; Eversmann, Recr., v. Schmitt, 53 Ohio St., 174; Hawkins v. Glenn, Trustee, 131 U. S., 319; Glenn, Trustee, v. Liggett, 135 U. S., 533; Great Western Telegraph Co., etc., v. Gray, 122 Ill., 630, 14 N. E. Rep., 214; Lycoming Fire Ins. Co., etc., v. Langley, 62 Md., 198; Milliken et al. v. Whitehouse et al., 49 Me., 527; Sections 3666, 6217 and 6218, Revised Statutes.

      Mr. J. C. Adams, for defendants in error, cited and commented upon the following authorities:

      Wadsworth et al. v. Davis, Recr., 13 Ohio St., 123; Union Mutual Fire Ins. Co. v. Spaulding, 61 Mich., 77; 27 N. W. Rep., 860; Borgraefe v. Knights of Honor, 26 Mo. App., 218; Joyce on Insurance, Section 1225; Swing v. Humbird, 101 N. W. Rep., 938; Price et al. v. Coblitz et al., 21 C. C., 732; Section 3666, Revised Statutes.
   Price, J.

The questions in controversy between the parties are —

(1) Did the trial court err in the admission of testimony introduced by the defendants?

(2) Did the court err in refusing to instruct the jury as requested by the plaintiff?

(3) Is there error in the general charge prejudicial to the plaintiff below?

(1) It was alleged in the petition that the policy of insurance was taken out by a co-partnership known as “The Heirs of Daniel Rose,” and on their property, and that on that account they became liable to the assessment made by this court, referred to in the foregoing statement of the case. The answer denied that there ever was such á co-partnership, and that as partners, the defendants did not apply for or receive said policy. The existence of the partnership relation was thus put in issue, and it is claimed by the plaintiff in error, that the trial court admitted improper evidence for the defendants to support their denial.

It seems that the property insured was a furniture factory at Roscoe, Ohio, which, in whole or in part, had belonged to Daniel Rose, the father of the defendants, and it was operated at least part of the time under the name of D. Rose & Son. One of the defendants states that the firm prior to the father’s death was “Rose Bros.,” composed of himself and his brother Marion. In -another part of his testimony, he says that the business was conducted in the name of D. Rose & Son as before.

The defendants have not been able to make a clear statement of the true relations they sustained to the factory. The father, Daniel Rose, died on the 28th day of April, 1888, and the policy under consideration was not issued until about October 1, 1888. W. E. Rose, one of the defendants, became administrator of his father’s estate, and he says he procured the policy in the "name of “The Heirs of Daniel Rose.” As administrator he never sold the insured property. The issue on the subject of a partnership relation between the defendants when the policy issued and while it was held, was therefore important. The court permitted W. E. Rose, defendant, to answer the following questions: “I want to ask you if on the 1st day of October, 1888, to state to the jury whether or not there was a partnership known by the firm name' as ‘The Heirs of Daniel Rose’?” Answer: “I know as a positive fact it was not.” John J. Rose, another defendant, was asked the following: Question: “I want to ask you if there was in 1888 and 1889 a partnership in which you was connected that was known and doing business as a partnership under the name of the Heirs of D. Rose?” Answer: “There was no such partnership existed.” Question: “Was you ever a member of a partnership of that character?” Answer: “Never was.” These and other questions of a similar character were allowed to be answered over the objections of the plaintiff.

We think the persons thus interrogated were permitted to state their opinions or conclusions, rather than the facts upon which the jury should pass. In a merely collateral case or proceeding, the existence or non-existence of a certain firm might be shown by such testimony, but where the issue is direct between the parties, as in this case, as to whether the defendants or either of them were members of a co-partnership, which is charged with being the owner of the policy of insurance, the above course of inquiry can not be justified. The facts should be elicited concerning the true relation, if any, the defendant sustained to the firm. What had he invested, if- anything, in such firm? What, if anything, did he pay of its debts, or receive of its earnings, and so on, in order that the jury, under the instructions of the court as to the law applicable, might determine whether a partnership relation existed.

The course adopted in the above questions and answers gave to the witness the right to decide the question and left nothing for the jury to find. This view should be somewhat emphasized, because of the other issue made by the amendment to the petition to the effect, that if they were not partners, they were jointly interested in the insured property and in the policy of insurance, for it clearly appears in the evidence, that when the factory was totally destroyed the loss was paid to and divided between the heirs of Daniel Rose, including the defendants in error. The money received from the insurance company was not administered upon in due course of law by the administrator, but with other insurance money was divided between said heirs. In the light of these facts and. circumstances, we are of opinion the objections to” the above questions should have been sustained.

There is another class of testimony objected to, and its admission is assigned for error. While J. J. Rose, one of the defendants, was on the stand, his counsel put the following questions, which were objected to: “Jack, was you ever apprised of any action brought against this company in the Supreme Court of Ohio?” Answer: “I never was. The first I ever heard of this case was when a voluminous batch of Supreme Court decisions and about a half a wagon load of papers and one thing and another was served on us— was decisions, and so forth, of the Supreme Court deciding that our liability — ” Question: “I don’t care about that. Was you ever served with any notice that the case was pending in the Supreme Court?” Answer: “Never was.” Question: “Did you know that there was one pending?” Answer: “I did not.”

The case referred to as pending in the Supreme Court. was the one in which the company was dissolved and the assessments made, one of which assessments is here in dispute. It was not an issue in the case, whether the defendants had been parties to that case. Beyond doubt they were not parties, nor was it necessary for them to be such in order to give the court the authority to dissolve the corporation and make a decree assessing stock or policy-holders. The assessing decree is in the record, and it does not attempt to determine who the policy-holders then were. No one is named as the holder of a policy. On the contrary, the decree classifies the liabilities of the company according to their date, and also classifies policies liable to assessment as those held by persons between April 25, 1889, and the 18th of December, 1890, without naming any such persons. In that proceeding to dissolve and decree a necessary assessment, the policy-holders were represented by the corporation, and they were neither necessary nor proper parties. The decree in that proceeding is conclusive as to the necessity for, and the amount of the assessment, but forecloses no-right to defend against it on any of the grounds contained in the answer.

In Eversmann, Receiver, v. Schmitt, 53 Ohio St., 174-188, this court was passing on the relation stockholders sustain to a building and loan association. In the first sentence of the opinion it is said that, “mutuality is the essential principle of a building association.” On page 188, the court, through Minshall, C. J., says: “But it is insisted that Mrs. Schmitt and the other members were not parties to the suit in which the receiver was appointed, and that he had no power to .make the assessment, and it is not binding, upon them. This objection is without weight. It is not necessary that the members should as individuals have been made parties to that suit. They are parties in their corporate name and capacity, and for the appointment of a receiver, that was sufficient. We will presume that the receiver was duly appointed, as there is nothing to the contrary. As receiver,' it was his duty to collect the assets and wind up thé affairs of the association. This could only be done by ascertaining the loss and making an assessment on the members to meet it * * *.”

In the action or proceeding to dissolve The Union Mutual Fire Insurance Co., this court decreed the assessment. It was an insurance company organized on the mutual plan, and the law as declared in Eversmann, Receiver, v. Schmitt, as to the absence of the policy-holders, is appropriate here. See also Hawkins v. Glenn, Trustee, 131 U. S., 319-336; Glenn, Trustee, v. Liggett, 135 U. S., 533; Milliken et al. v. Whitehouse et al., 49 Me., 527; Mutual Fire Ins. Co. v. Phoenix Furniture Co., 108 Mich., 170; Langworthy v. Garding, 74 Minn., 325; Commonwealth Mutl. Fire Ins. Co. v. Hayden et al., 61 Neb., 457. In the latter case it is said by the court: “We do not mean that it (the judgment of assessment) is conclusive as against any individual sued as a stockholder, that he is one, or if one, that he has not already been discharged by payment to some other creditor of the corporation the full measure of his liability, or that he has no claims against the corporation, or judgments against it which he may, in law or equity, as any debtor, whether by judgment or otherwise, set off against a claim, or judgment, but in other respects it is an adjudication binding him.” See also N. H. Mutl. Fire Ins. Co. v. Rand, 24 N. H., 436, 437.

What then of the evidence admitted to the effect that the defendants were not parties or served with process in the proceeding in which this assessment was made? At first blush it might look as immaterial merely, but not prejudicial. There was no issue made on the subject, and the only tendency of such testimony was to arouse a prejudice against the attempt to enforce a liability fixed in a case to which the defendants were not parties. It was wholly foreign to the issues on trial, and the court failed to' caution the jury about it at any stage of the case. If this were the only error in the record, we might pass over it, with the hope that it became obscured in the consideration of more weighty matters in controversy. But there are other errors.

(2) The plaintiff requested the court to give before the beginning of the arguments of counsel, several requests, some of which were given without modification. The sixth request was not so given. It reads: “6. If you find from the evidence that the defendants met with a total loss on the property insured in the policy in question, and were paid for the same by said insurance company, then you are instructed that the defendants remained liable to assessments for debts incurred by said insurance company up to the end of the term for which the defendants ’were insured, notwithstanding that they may have receipted in full for their policy and cancelled the same ánd returned it to the company and received from the company their premium note.” But the court did not give the charge except in connection with the modification: “Unless you find from the evidence that the settlement as claimed by the defendants was the settlement made with the company or its officers and agents, and was afterwards and with knowledge thereof approved and ratified by the company.”

Was the proposition before .the modification sound law ? If so, it should have been given before argument. If not sound, it should have been rejected. Subdivision 5 of Section 5190, Revised Statutes, provides: “When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

It seems to us that the proposition, without the modification, should have been given. The statute quoted does not contemplate that such written instruction should cover every branch and feature of a case on trial, including the effect of an affirmative defense of payment, settlement or release. The request appears to be sanctioned by Section 3666, Revised Statutes, which in part reads: “When policies issued on the mutual plan are cancelled * * * the assured must first pay his proportion of all losses which have actually occurred up to the date when the policy was received for cancellation.”

The seventh instruction requested to be given before argument is to the effect that, if the jury “should find from the evidence that one J. C. Richardson undertook to make a settlement with the defendants of their assessable liability at the time loss was paid for, you are instructed that, unless you also find from the evidence that said Richardson was duly authorized by the proper authorities of said company to make such settlement, that nothing said or done by said Richardson effected a release of defendants for any liability to assessment.” This was not given except with' the modification ¡.“Unless the settlement he made so operated and the company with knowledge thereof approved and ratified the same, as you so find from the evidence.”

Here again the court loaded down the instruction with a modification, that if the settlement with Richardson so operated and the company with knowledge thereof approved the same, it would stand. There is nothing in the record to show any authority in Richardson to make the alleged settlement, and the question of a ratification of his acts by the company, should have been submitted separately. As the defendants submitted written instructions on the subject of the settlement pleaded in the answer, and they were given before argument, it would seem but fair that the written instructions requested by the plaintiff should not have been so modified as to embrace all the law contained in the instructions given for his adversaries.

(3) The general charge is excepted to. It is brief, but contains one manifest error. We quote an entire paragraph. After telling the jury that if the defendants were policy-holders between the 25th day of April, 1889, and December 18, 1890, they were liable to be assessed for losses, and that in contemplation of law, they were such holders, though the policy was cancelled and the premium note returned after payment was received for the total loss, unless the liability had been compromised and on that account the cancellation was made and note surrendered, the court then added: “There is no claimed liability prior to April 25, 1889; that question is settled by the Supreme •Court, as appears from the copy of the decree in evidence in this case and by the copy attached to the petition. While the assessments made and ordered by said court are conclusive, it does not undertake to determine who are policy-holders, and you are not concluded by it from determining whether or not the defendants zvere such when the decree was entered; and if they zvere not; and you so find from the evidence under these instructions, including the special requests given you in charge before argument, then you will not inquire further and yo%ir verdict will be for defendants The latter part of this paragraph is not only inconsistent with what had preceded it, and there-fore misleading, but • it is erroneous in itself. There was no subsequent modification or explanation of the proposition.

The judgment of ouster was entered on the 18th day of December, 1890, and after interlocutory assessments were made, the final decree of assessment was not made until June 11, 1901, and it is under the latter that the defendants are sought to be held. The jury was told that while the assessments made by said court are conclusive, they were not concluded by it from determining whether or not the defendants zvere policyholders when the decree was entered, and that if they were not, the verdict should be for the defendants. This instruction can not stand in the light of the undisputed facts, for it is agreed on all hands, that the fire causing a total loss of the insured property, occurred on the 22d day of February, 1889, and that the loss was paid to the extent of $1,450 on the 5th day of July, 1889. When the loss was paid, the policy was receipted and surrendered to the company, and in a few days thereafter the premium note was sent to defendants. Hence, the defendants were not policyholders when the assessing decree was entered. Yet, the jury was charged that if they were not holders of a policy, the verdict should be in their favor. Moreover, such a declaration of the law was misleading from another point of view. When the judgment of ouster was rendered and a trustee appointed, it became his duty to call in all outstanding policies for examination and cancellation. The discharge of this duty did not release the policy-holder from liability for losses of •the company which accrued during the life of the policy, and yet all such cancellations occurred long prior to the assessing decree.

We conclude that the trial court erred in that part of the general charge quoted above.

We .are asked to reverse, because -the trial court charged the jury concerning the settlement plead in the 4th defense in the answer, it being claimed by the plaintiff that there is no evidence whatever, that the officer of the company who conducted and made the settlement with the defendants, was authorized by the board of directors to make such settlement, and thus surrender the premium note. Two of the defendants testify that they took part in the settlement at Cincinnati, and one states that the officer representing the company, made calculations of some kind as to what would or might become due in the future on the premium note, and that in consideration of accepting a sum much less than the actual loss, the future liability on the note was released. This does not appear in the receipt for the $1,450, or other writing, but is testified to positively and no one testifies to the contrary. Neither the trustee or his counsel, Mr. Reece, had found on the books of the company any acts of the board of directors authorizing the settlement claimed, and, therefore, it is said the court was not justified in charging upon that subject, especially in telling the jury in effect, that if the settlement became known to the company, and was ratified by it, it would be binding, although not authorized regularly in the first instance. Plaintiff urges strongly that there is no evidence either of an authorization or ratification, and that the court should have so charged.

We are not prepared to sanction all the plaintiff claims on this score, and to say that if the minutes of the board show no authorization to settle, nor any ratification of settlement after it was made, it could not be regarded as a defense. If the board actually took action to authorize a settlement, and the secretary failed to record it, the fact might be proved otherwise. And if the board ratified the settlement and the secretary failed to enter the fact on the minutes, may it not .be proved by parol?

There is no direct evidence in the record, either written or parol, that the officer was authorized by the board to make the settlement, and the same can be said as to ratification. If the board had subsequent meetings and found a settlement had been made of a policy for much less than its face, it might be a circumstance to be taken into account with the lapse of the time between June 5, 1889, and December 18, 1890, as tending to show knowledge of the company and its acquiescence. In .short, there is not such an absence of circumstances and events as need preclude the court from submitting in proper form and order the question of a ratification of the settlement by the company. The transactions connected with the alleged settlement were rather old at the time of the trial, and for that reason, perhaps, matters have not been made clearer in the record. Several years elapsed between the alleged settlement and the bringing- of this action, and we can not say as a matter of law, that it was error for the- court to submit to the jury whether or not the company ratified what had been done.

But for the errors pointed out, we reverse the judgment and remand the case.

Judgment reversed.

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


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    Graham et al. v. The German American Insurance Company. The German Insurance Company v. Kistner, Admx. The Royal Insurance Company v. Silberman.

      Policy of ñre insurance — Stipulation for appraisement of damage— Before suit for recovery of any claim by insured — Such provision constitutes condition precedent — Section 3643, Revised Statutes — Extent of liability under policy of insurance■ — No obligation on insurer to demand appraisal, when — Insurance law.

    •c. When a policy of fire insurance contains stipulations that in the event of a disagreement between the insurer and the insured as to the amount of loss or damage the same shall be ascertained by appraisers in the manner provided in the policy; and that the amount "of loss or damage having been “thus determined,” the loss shall not become payable until sixty days after the notice, ascertainment and satisfactory proof of -the loss required in the policy have been received by the insurer, “including an award by appraisers when appraisal has been required”; and when the said policy contains the further condition that, “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the'insured with all the foregoing requirements,” such provisions constitute a condition precedent, which imposes an obligation on the insured, in the event of disagreement as to amount of loss,. to procure an award or ascertainment of the loss by appraisers, or to show a legal excuse therefor, before he can maintain a suit on the policy to recover the loss, except as such condition is modified as to a total loss by Section 3643, Revised Statutes; and in a suit to recover on such a loss, in the absence of an award of appraisers and of a demand for such appraisal by either the insured or the insurer, .no cause of action is shown.
    2. In such a policy the words “including an award by appraisers when appraisal is required,” do not impose any obligation on the insurer to demand an appraisal; but in the event of a disagreement between the insurer and the insured as to the amount of the loss, an appraisal is required by the terms of the contract, and in a suit on the policy the burden lies upon the insured to show that he has, on his part, performed, or offered to perform, the condition as to the appraisal.
    3. Grand Rapids Ins. Co. v. Finn, 60 Ohio St., 513, is overruled.
    (Decided January 22, 1907.)
    Error. — No. 9568 to the Circuit Court of Stark County — No. 8979 to the Circuit Court of Wood County — No. 9702 to the Circuit Court of Cuyahoga County.
    On the trial of the case from Stark county in the court of common pleas the court charged the jury: “I will say to you as matter of law that if there was a disagreement between the plaintiffs and the defendant company as to the amount of loss under the policy occasioned by the fire in question, then the amount of that loss could be ascertained only in the manner provided by the policy; that is, by an appraisal; because the parties to this contract of insurance, by the terms of the contract, provided that if they themselves could not agree upon the amount of loss, then the same should be ascertained by appraisers appointed and according to said provisions of the policy; and that is the only manner in which the amount of loss can be determined between these parties, if they have failed to agree between themselves. If, therefore, you find that there was such a disagreement, and if no appraisal was demanded by either party, there can be no recovery in this case; for a condition in a policy of insurance against fire that in case of loss and disagreement or difference between the parties as to the amount of loss, that the amount shall be ascertained by arbitration or appraisal, is a proper and valid condition; and where it is also provided that the conditions as to arbitration 01-appraisal must be complied with before a suit can be brought against the company — the insurer— the condition is thereby made a condition precedent, and to entitle the insured to maintain an action to recover under such a policy, plaintiff must show that she has either performed the conditions. or has a legal excuse for the non-performance of such conditions, such as a refusal to submit to an arbitration by the other party, or a refusal to select an appraiser.”
    The court further in that connection instructed the jury, that a disagreement as to the amount of the loss had arisen between the insurer and the insured; $hat it was necessary for the plaintiffs, before they could bring this suit, to demand an appraisal to determine the amount of loss, unless such appraisal had been demanded by the defendant, and that as there was no evidence in the case to show that either party had demanded an appraisal, there could be no recovery, and the court thereupon directed the jury, under the proof in the case, to return their verdict for the defendant, the insurance company, which was accordingly done and judgment rendered upon the verdict, and the judgment was affirmed by the circuit court. The case is brought to this court to reverse the judgments of the circuit court and the court of common pleas.
    In the second case mentioned several errors are assigned, but the controlling one arises in this way. . On the trial in the court of common pleas, the court was asked to instruct the jury, it being admitted that a difference arose as to the amount of the loss and that the plaintiff had failed to select, or offer to select, an appraiser, or to furnish or offer to furnish an award fixing the amount of the loss, he had not complied with the conditions of the policy on his part, and could not recover. The court refused to so instruct the jury.
    The court was also asked to say, that compliance with the appraisal clause was, under the facts admitted, a condition precedent to the plaintiff’s right to bring an action, which instruction the court refused to give.
    The court was also asked to instruct the jury that, under the admitted facts, the award of appraisers became a necessar)^ part of the plaintiff’s proofs of loss, and having failed to furnish, or offer to furnish, such an award he has not furnished the proofs required. The court refused to' so instruct the jury.
    A verdict was returned in favor of the plaintiff and against the insurance company. Judgment was rendered upon the verdict, which judgment was affirmed by the circuit court sitting in and for the county of Wood, and to reverse the judgments of the circuit court and court of common pleas this proceeding in error is brought here.
    In the third case mentioned, the defendant, the insurance company, requested the court to instruct the jury, that the policy sued on in that case contains a condition providing that in case of a loss and a disagreement or difference between the parties as to the amount of the loss, that the amount should be ascertained by arbitration or appraisal, and that the condition as to arbitration or appraisal must be complied with before a suit can be brought against the company; that this - condition is a proper and valid condition, and is a condition precedent, and to entitle the plaintiff to maintain this action he must show that he has either performed the condition or has a legal excuse for non-performance thereof, which the court refused to give. A verdict for the plaintiff was returned, judgment was rendered thereon which was affirmed by the circuit court of Cuyahoga county, and the case is here, the plaintiff in error seeking a-reversal of the judgments of the circuit court and court of common pleas.
    In each of these cases the policy contained provisions as follows:

      “This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality;' said ascertainment or .estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.”
    “In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.
    “This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required. * * *
    “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. * * * This policy is made and accepted subject to the foregoing stipulations and conditions * *
    These cases were all orally argued in one division of this court, but have been considered and decided by the whole court.

      Messrs. Craine & Snyder, for Graham et al.} ' plaintiffs in error.
    We contend that the court erred: (1) In charging that it was necessary for the plaintiffs in error to prove that a demand for appraisal had to be made before an action could be entertained, and that as no such demand had been made, the jury should find for the defendant; (2) in directing a general verdict, on the merits, to be found by the jury, and rendering judgment thereon, instead of entering judgment that the action abate until after a demand had been made.
    The charge given by the court as to a demand for appraisement was directly ruled to the contrary in Grand Rapids Fire Ins. Co. v. Finn, 60 Ohio St., 513, but the court of common pleas took the view that the case of Phoenix Ins. Co. v. Carnahan, 63 Ohio St., 258, overruled the 60 Ohio St., 513. We see no conflict between the 60 Ohio St., 513, and the 63 Ohio St., 258. The facts in the two cases are entirely different, and each seems to be the' approved law under the facts of each case. In the 60 Ohio St., 513, the court held that the insured was not bound to furnish an award of appraisers, excepting when an appraisal had been demanded by the insured; in the 63 Ohio St., 258, the court held that when the insurance company demanded an arbitration, the insured was bound to comply therewith, and could not avoid such arbitration by evasive means. We think that both of these cases are sound law when applied to the facts which gave rise to them.
    The 60 Ohio St., 513, seems to be sound in principle and sustained- by the great weight of authority. On authority it is fully sustained by: Lesure Lumber Co. v. The Mutual Fire Ins. Co. of N. Y., 101 Ia., 514; National Home B. & L. Assn. v. Dwelling-house Ins. Co., 106 Mich., 236; Kahnweiler et al. v. Phoenix Ins. Co., 14 C. C. A., 485; Read & Traversy et al. v. The State Ins. Co., 103 Ia., 307; Chainless Cycle Mfg. Co. v. The Security Ins. Co., 169 N. Y., 304; Chapman v. Rockford Ins. Co. et al., 62 N. W. Rep., 423.
    In the 63 Ohio St., 272, Judge Davis, in delivering the opinion of the court, cites Kahnweiler et al. v. Phoenix Ins. Co., 3 Ins. L. J. N. S., 393, 57 Fed. Rep., 562. An examination of the case will show that the provision of the policy in regard to arbitration was different from the one at bar, in this: that it omitted, among other things, the words, “including an award by appraisers when appraisal has been required,” and further provided that an award by appraisers should be a “condition precedent.” This case was afterwards taken to the" circuit court of appeals, and in an opinion by Judge Caldwell, concurred in by judges Sanborn and Thayer, was reversed at all points in an opinion which seems logical, and in which the question is discussed on principle rather than on authority. See Kahnweiler et al. v. Phoenix Ins. Co., 14 C. C. A., 485.
    All of the authorities that support the 60 Ohio St., 513, give weight to the following words in the policy, viz.: “including an award by appraisers when appraisal has been required.” The word “required” is equivalent to “demanded.” If the words “including an award by appraisers when appraisal has been required” do not mean what we contend for them, then these words are simply surplusage, and are of no force or effect in the policy. Why not read the policy down to the word “company,” stop there, and strike out the words “including an award by appraisers when appraisal has been required,” unless these words mean what we claim for them?
    The policy in this case is what is known as the New York standard form of policy and is the one nearly invariábly used throughout the United States; and, as nearly all of the real and personal property in this country is insured under this form of policy, it seems to us that in view of the vast interest that the people have in insuranee, the court should adopt the doctrine o£ stare decisis and adhere to the 60 Ohio St., 513, and that a matter so important as the construction of a standard form of policy should not vary with the personnel of the court.
    If the court’s view that the 63 Ohio St., 258, overruled the 60 Ohio St., 513, and that no suit could be maintained until a demand by the insured for arbitration, then the plaintiffs in error had simply brought their cause prematurely, just like a person who sues on a note before it is due, but it would not authorize the court to direct the jury to find each and all of the issues in the case for the defendant, as the jury did find.
    Assuming that the court’s view of the law was correct, the court should have taken the case from the jury and made the record show the grounds on which it did so. This would have given the plaintiffs in error an opportunity to demand arbitration, and save their rights. The defense of no demand for arbitration was simply a dilatory one (as the year in which to bring the action had not expired), and judgment should not have been entered as a bar. Kahnweiler et al. v. Phoenix Ins. Co., 14 C. C. A., 485.

      Messrs. Lynch, Day & Day, for The German-American Insurance Co., defendant in error.
    The principal contention is that the trial court erred in holding that in case of disagreement as to amount of loss, the same must be ascertained by an appraisal; and that if there was no demand for an appraisal and no appraisal had, there could be no recovery.

      We submit the trial court was right in its view. In other words, we contend that where a policy provides that in case of disagreement over the amount of loss, the same shall be determined by appraisal before suit can be brought, then such provision is obligatory and not optional and the insured must show an appraisal was had or at least demanded by him.
    It is our contention that the Carnahan case (63 Ohio St., 263) disposed of this question. The question now raised is covered by the fifth paragraph of the syllabus of the Carnahan case.
    Another point worthy of consideration (although not involved in the present case) is that in Grand Rapids Fire Ins. Co. v. Finn, 60 Ohio St., 513, which is mainly relied on to support the contrary doctrine. This court held that the demand for appraisal must be made in good faith, but in the tenth paragraph of the syllabus in the Carnahan case, the court held to the contrary on the question of good faith.
    While the court on this last proposition does not in terms overrule the Finn case, it certainly does in effect. And we therefore contend that while-on the appraisal question, this court did not in-terms overrule the Finn case, they^did so in effect and wished to be so understood.
    It .is a settled rule of law that an agreement to submit all matters in controversy to arbitration is invalid because it attempts to wholly oust the courts of their jurisdiction; at the same time it has been held that if the parties agree that the amount of loss or damage shall be ascertained in that or some other particular manner, or that certain evidence of the amount due shall be furnished, or that any matter which does not go to the root of the right of action shall be determined in some particular way, such agreement is valid and no action can be brought until that'part of the agreement is complied with.
    Treating this as an original question, outside the authorities, we submit that an analysis of the contract leaves no doubt as to its correct interpretation.
    The claim of the insured is founded upon the phrase “when appraisal has been required,” which they say makes the appraisal optional and not obligatory. To determine the meaning of the above clause, let us consider the other parts of the contract. One clause of the policy provides:
    “Said ascertainment or estimate shall be made by the insured and this company, dr, if they differ, then by appraisers, as hereinafter provided.”
    Observe that this clause contains no option, but the language is obligatory; it requires that if the parties can not agree, the loss shall be ascertained by appraisers and makes such appraisal a condition precedent to payment. This is the principal clause in the contract providing how the amount of loss shall be ascertained.
    ' But following it, we have a clause reciting, for a second time, that if they disagree the loss shall, as above provided, be ascertained by appraisers. The clause further provides for all details of the appraisal.
    Observe that this clause does not make the appraisal optional upon the demand of either party, but requires that it shall be had if the parties disagree.

    Next we have a clause providing first against waivers and next as to the time when the amount of the loss shall be payable.
    In view of the manner in which the policy or contract is constructed and the two positive provisions that the loss shall be appraised if the parties fail to agree on it, is this the proper place in which to insert a new provision on the subject of the appraisal, making the same conditional upon a demand by one of the parties? Certainly not. The appraisal clause in insurance policies is similar to the arbitration clause found frequently in contracts providing that if the contracting parties can not agree on certain matters, the same shall be referred to arbitrators.' Is there any doubt that no action will lie so long as there is neither arbitration nor demand therefor? If it was intended to make the appraisal optional, why was the same not inserted in the clauses which specifically deal with the method of ascertaining the amount of loss, instead of inserting such option in the paragraph relating to the time when the loss shall be payable? The policy requires that immediate notice be given the company after the fire; also that the insured shall furnish an inventory and estimate of loss to the company; and also that he shall furnish proofs of loss. These three things are made obligatory in every case, whether disagreement exists or not.
    It will be noted that in the same clause payment is postponed until after notice, estimate and proofs shall be furnished, as required; but it also provides that the loss shall not be payable until after an award of appraisers shall be furnished.
    Now, if the language stopped there, we would have this peculiar condition that in many cases (especially total loss cases) there is no disagreement between the parties as to the amount of loss, and, there being no disagreement, there is no necessity or requirement for an appraisal. Yet this clause would require, not only that the notice, estimate and proofs be furnished, but that an appraisal be furnished in every case, although there might be no dispute to be settled by an appraisal.
    • Inasmuch as the other provisions of the contract require an appraisal to be had, if there is a disagreement, then it is proper to postpone payment in every case until notice, estimate and proofs were furnished and also to postpone payment until after an appraisal was furnished, if an appraisal was required, because of such disagreement.
    It is therefore clear that the phrase “when appraisal has been required” was inserted so that the furnishing of an appraisal should not postpone ‘ the time of payment in any case, except where there had been a disagreement about the amount of the loss, under clauses which required an appraisal. It clearly was not intended as an independent provision (directly conflicting with prior provisions) to the effect that appraisal should be had only when demanded. Plaintiffs’ construction brings these causes in direct conflict with each other. To obviate this it is argued that if the words “including an award by appraisers when appraisal has been required” do not mean what they contend for, then they are “simply surplusage and are of no force or effect in the policy.” We think we have clearly pointed out what is the office of this provision.

      Bearing in mind that there are already two obligatory provisions for .an appraisal in case of disagreement, to what does the clause in question refer? Does it refer to these two provisions, or does it refer to something that may be in the minds of one of the parties, viz.: a desire or wish to have an appraisal?
    Again, if the parties meant to make the appraisal optional, why did not the contract-so provide in appropriate language in each of the three places where appraisal is referred to?
    It is perfectly plain, therefore, that the phrase “when appraisal has been required” means that such appraisal must be furnished if it is required because of a disagreement between the parties touching the amount of loss.
    Our construction comports with one of the principal rules for construction of contracts in that it makes all parts of the contract consistent with each other; while the construction contended for by the insured raises a conflict between the various clauses. 2 Parson’s Contracts, 9th Ed., page 967; Travelers Ins. Co. v. Myers & Co., 62 Ohio St., 529; Germania Fire Ins. Co. v. Schild, 69 Ohio St., 139.
    The insured to whom a policy has been delivered is presumed to know and assent to the provisions contained in the policy. Union Central Life Ins. Co. v. Hook, 62 Ohio St., 256.
    It may be observed further that the provision for appraisal in all cases of disagreement is a just and wise provision. No questions of law are ordinarily involved in such appraisal, but only such questions of fact as relate to quantities, qualities, values, etc. The advantage in' having these questions determined promptly after the fire by appraisers who are on the spot, with the property in its damaged condition before them and all surroundings unchanged, rather, than to have the same questions determined months thereafter by a jury, are perfectly evident. The court, therefore, should not lean against the enforcement of the appraisal provision.
    To the same end, it may be urged that every fire is a calamity to the public as well as- the assured and all policy stipulations which, by avoidance of delays, tend to adjust the losses promptly and thus lessen the magnitude of the calamity, should be construed by the courts with that object in view.
    The precise point involved- here was pássed on in Mosness v. German-American Ins. Co. of N. Y., 50 Minn., 341; Adams et al. v. South British, etc., Ins. Co., 70 Cal. 198; Old Saucelito Land & Dry Dock Co. v. Commerical Union Assurance Co., 66 Cal., 253.
    This case lays down the same doctrine as quoted in the Adams case. Kahnweiler v. Phoenix Ins. Co., 57 Fed. Rep., 562.
    In this case there was no demand made by either party. Chippewa Lumber Co. v. Phoenix Ins. Co., 19 Ins. L. J., 535. In this case there was no demand made by either party. Murphy v. Northern British & Mercantile Co., 61 Mo. App., 323; American Digest, Century Edition, subject Insurance, page 2326.
    It was held in this case, and the language in the policy was precisely the same as the case at bar, that when there is a difference between the parties as to the amount of loss, that difference ipso facto requires an appraisal.

      Flaherty v. Germania Ins. Co., 1st Weekly Law Notes, 352; same case American Digest, Century Edition, subject Insurance, page 2323. This case held the same as the Murphy case and the language in the policy was also similar.
    Thus it will be seen that our interpretation of this portion of the standard policy is sustained by the weight of authorities elsewhere.
    The authorities hold that where arbitration is agreed upon to determine a question of fact, no other method can be resorted to. See Scott v. Avery, 8 Exch., 487; Delaware & Hudson Canal Co. v. The Penna. Coal Co., 50 N. Y., 250; Liverpool, etc., Ins. Co. v. Wolff, 14 Atl. Rep., 561; Carroll v. Girard Ins. Co., 13 Pac. Rep., 63; Holmes et al. v. Richet, 56 Cal., 307; Davenport v. Long Island Ins. Co., 10 Daly (N. Y.), 535; Gauche et al. v. London & Lancashire Ins. Co., 10 Fed. Rep., 347; Liverpool, etc., Ins. Co. v. Creighton et al., 51 Ga., 95; United States v. Robeson, 9 Pet., 319; Lovejoy et al. v. Hartford Ins. Co. et al., 11 Ins. L. J., 186; Hudson et al. v. McCartney, 33 Wis., 331; 2 Wood on Insurance, S. 493; Reed v. Washington, etc., Ins. Co., 14 Ins. L. J., 465.

      Messrs. Van Pelt, Dale & Ferneding and Mr. lames 0. Troup, for The German Insurance Co. of Freeport, 111., plaintiff in error.
    There are but two decisions in this state on this question and they are in direct conflict. In Grand Rapids Fire Ins. Co. v. Finn, 60 Ohio St., 513, the court held that this clause in the standard policies did not make either an appraisement or a demand by the insured therefor, a condition precedent to a right of action on the policy, and imposed no obligation on the insured to furnish an award except on demand of the company. In Phoenix Ins. Co. v. Carnahan, 63 Ohio St., 258, the court took directly the opposite view and held that compliance with this clause is a “condition precedent and to entitle the insured to maintain an action to recover under the policy, he must show that he has performed the condition or has a legal excuse for non-performance thereof.” The amount involved, the number of companies interested, the importance of the questions presented, and the care given to their consideration, make this the leading insurance case in this state.
    The policies therein considered, like the policy in this case, were evidently the standard policies in general use, or at least there was no essential difference in their terms. In that case the court say: “Now by the terms of each of these policies the condition as to arbitration and appraisal- is very clearly made a condition precedent; and therefore, until the condition is complied with, or a fair effort made to comply on the part of the insured, no cause of action can arise,” citing authorities. And the court further say: “Indeed, whatever may be required of the insurer when once a demand for arbitration has been made on either side, the insurer is not bound to assume the initiative by making a demand. Kahnweiler v. Insurance Co. (U. S. C. C.), 3 Insurance L. J. N. S., 393. The insured can not rest upon the silence of the insurer as to arbitration, when a difference arises as to the amount of the loss. It was therefore incumbent on the insured, not the insurer, to perforin this condition as a condition precedent to the right of recovery, whenever a difference should arise, as to the amount of the loss, whether a demand was made by the insurer or not.”
    The question now under consideration was plainly, clearly and directly decided by the court in that case. If this, the latest utterance of this court, is the law, the decision in the Finn case is not. The conflict in the two cases is direct, there is no attempt in the latter case to distinguish it from the former, and as “full faith and credit is always to be given to the latest decisions,” the Finn case must be considered as overruled by the Carnahan case.
    It is impossible to harmonize the two decisions. If the law as announced in the last case is to control in construing the appraisal clause in the standard policies, and the clauses relating to bringing suit and the obligation of the insured to comply with all requirements of the policy before suing, then furnishing or offering to furnish an award fixing the amount of the loss, is 3 conditipn precedent, and the insured must perform it or show a legal excuse for non-performance. He must take the initiative. He can not await a demand by the company. An award becomes a necessary part of his proofs of loss. The decision in the Carnahan case is in line with the latest and best considered cases in other courts. Kerr on Insurance, page 614. The language used by Mr. Kerr is exactly the language of the policy in this case.
    As sustaining these conclusions the author cites: Hamilton v. Liverpool, etc., Ins. Co., 136 U. S. 255; Dee & Sons Co. v. Key City Fire Ins. Co., 104 Ia., 167; Gasser v. Sun Fire Ins. Co., 42 Minn., 315; Chippewa Lumber Co. v. Phoenix Ins. Co., 80 Mich., 116; Langan v. Aetna Ins. Co., 96 Fed. Rep., 705; McNees v. Southern Ins. Co., 69 Mo. App., 233; Mosness v. German-American Ins. Co., 50 Minn., 341.
    In addition we cite: Old Saucelito Land & Dry Dock Co. v. Commercial Union Assurance Co., 66 Cal., 253; Palatine Ins. Co. v. Morton-Scott-Robertson Co., 106 Tenn., 558; Murphy v. Northern British & Mercantile Co., 61 Mo. App., 323; Fisher v. Merchants’ Ins. Co., 95 Me., 486; Adams, Admr., v. N. Y. Bowery Fire Ins. Co., 85 Ia., 11; Adams et al. v. South British, etc., Ins. Co., 70 Cal., 198; Carroll, Exrx., v. Girard Fire Ins. Co., 72 Cal., 297; Lamson, etc., Service Co. v. Prudential Fire Ins. Co., 171 Mass., 433; Stout v. Phoenix Assurance Co., 56 Atl. Rep., 691.
    It is a disagreement as to the amount of the loss which makes an appraisement a prerequisite and an award a necessary part of the proofs of loss. No demand by the company is required.
    So that clause of the policy, “when appraisal has been required,” relied upon by the plaintiff as modifying the foregoing provisions, plainly has no such' effect. That clause clearly refers to the contingency of disagreement, for, when a disagreement has occurred, then, ipso facto, appraisal has been required.

      • When this court in the Carnahan casé say, “The insurer is not bound to. assume the initiative by making a demand,” and that the insured “can not rest upon the silence of the insurer as to arbitration when a difference arises as to the amount of the loss,” and that it is “incumbent on the insured, not the insurer, to perform this condition as a condition precedent to his right of recovery” when a difference arises, the court was but giving effect to the plain language and meaning of the policy, and interpreting it in harmony with the clear weight of authority.
    In the case at bar not only was there no plea of waiver, but the non-waiver agreement takes this question entirely out of the case. This was signed before they began to talk about the store loss.
    Such agreements are based upon a good consideration, are perfectly valid and binding upon the parties, and prevent acts which might otherwise be construed as waivers from having that effect. Such is the clear weight of authority, and especially of the latest cases. Sun Mutual Ins. Co. v. Dudley, 65 Ark., 240; Keet-Rountree Dry Goods Company v. Mercantile Town Mutual Ins. Co., 100 Mo. App., 504; 74 S. W. Rep., 469; Dolan v. Missouri Town Mutual Fire Ins. Co., 88 Mo. App., 666; Hayes v. United States Fire Ins. Co., 132 N. C, 702, 44 S. E. Rep., 404; Fetcher v. Minneapolis, etc., Ins. Co., 80 Minn., 152, 83 N. W. Rep., 29; Fire Assn. of Phila. v. Calhoun, 28 Tex. Civ. App., 469; Roberts, Willis & Taylor Co. v. Sun Mutual Ins. Co. et al., 19 Tex. Civ. App., 338, 48 S. W. Rep., 559; City Drug Store v. Scottish, etc., Ins. Co., 44 S. W. Rep., 21; Curlee v. Texas Home Fire Ins. Co., 31 Tex. Civ. App., 471, 73 S. W. Rep., 831.

      Messrs. Baldwin & Harrington, for Kistner, Admx., for defendant in error.
    We agree that the facts alleged by counsel for plaintiff in error in the introduction to their brief to be “admitted facts,” may be so regarded, except that the finding with respect to the provision contained in the policy as to the appraisal and award should be in accordance with the provision actually contained therein upon this subject; i. e., that such action is only necessary when required and a demand therefor made. In this case it is an .admitted fact that no appraisal was required or demanded. Upon this proposition the defendant in error relies upon the decision of this court rendered in the case of Grand Rapids Fire Ins. Co. v. Finn, 60 Ohio St., 513.
    This precise question was decided in that case, and it was the only question that case did decide, the court holding that “Such provisions impose no obligation on the insured to furnish an award of appraisers except when an appraisal has been demanded by the insurer.” Birmingham Ins. Co. v. Pulver, 126 Ill., 331; Sergent v. Liverpool, etc., Ins. Co., 155 N. Y., 349; McNally v. Phoenix Ins. Co., 137 N. Y., 389; German Fire Ins. Co. v. Stewart (Ind.), 42 N. E. Rep., 286; National Home B. & L. Assn. v. Dwelling-house Ins. Co., 106 Mich., 236; Davis v. Atlas Assurance Co., 47 Pac. Rep., 436; Sun Mutual Ins. Co. v. Crist, (Ky.), 39 S. W. Rep., 837.
    We may say, as counsel in this case, that when the plaintiff first came to us there was still ample time for an appraisement, but with this decision of the supreme court holding squarely upon the proposition that an appraisement was unnecessary, we, of course, were guided by the decision.
    Counsel contend this case is overruled by the case of Phoenix Ins. Co. v. Carnahan, 63 Ohio St., 271. We do not so understand it.
    We think there is an evident distinction' made by the court in the latter case, and one which clearly riiight be made upon the facts in that case. The court found in the Carnahan case that a demand for an appraisal had been made and that this afforded the foundation for the enforcement of this provision.
    In the case at bar there was not even a hint or suggestion upon the part of the company that an appraisal was required, nor was there in the evidence a suggestion of a disagreement as to the amount of the loss, save the inference necessarily resulting from a denial of liability, as averred in the reply. When it is alleged in the answer that there was a difference as to the amount of the loss, and the proof shows that the company did not in fact question the amount of the loss except inferentially, in demanding the production of duplicate invoices of goods purchased within the year and finally in denying any liability whatever, it will be seen that the disagreement as to the amount of the loss really arises in a demand upon the part of the insured for adjustment of the loss, and the dilatory and misleading course taken by the company in demanding duplicate invoices, etc., finally resulting in a denial of all liability.
    We think, however, that the decision in the Finn case is right upon principle and as this court there said in the language above quoted, is “sustained by the great weight of authority.” When a loss has been sustained, what is the policy-holder -reqúired to do other than present his claim and make his proofs of loss? He can not know that the company will require an appraisement unless they demand it, and this we understand to be the holding in the Carnahan case by the paragraph of the syllabi above cited. See 13 Am. & Eng. Ency. Law (2d Ed.), page 361; also German Ins. Co. v. Kistner, Admx., 26 O. C. C., 569; 5 C. C. — N. S., 165.

      Mr. Charles W. Stage and Messrs. Calhoun & Guenther, for The Royal Insurance Co., plaintiff in error.
    We contend that the stipulation for an appraisal was a condition precedent to a recovery; and performance of this condition, or an excuse for non-performance, must be proven by the plaintiff in conformity with the rule laid down by this court in Phoenix Ins. Co. v. Carnahan, 63 Ohio St., 259; Kerr on Ins., pp. 614, 615, 616; Palatine Ins. Co. v. Morton-Scott-Robertson Co., 106 Tenn., 558; Cooley’s Briefs on the law of insurance, Vol. IV, p. 3606.
    We maintain that plaintiff below failed to comply with this appraisal condition, and that there is no evidence in the record tending to show a performance thereof, or any legal excuse for nonperformance; and, therefore, the trial court should, as a matter of law, have held that plaintiff had no cause of action, and rendered judgment for the insurance company.
    It is our claim that the appraisal was a condition precedent which Silberman, the insured, must meet either with proof of performance or a valid excuse for non-performance, as decided by this court in Phoenix Ins. Co. v. Carnahan, 63 Ohio St., 259. Counsel dispose of our contention with the statement that the rule announced in Grand Rapids Fire Ins. Co. v. Finn, 60 Ohio St., 513, is decisive of our contention, because it was not criticized, distinguished or overruled in the Carnahan case, or any later decision by this court.
    We frankly admit to the court that if the rule adopted in the Finn case to the effect that appraisal conditions “impose no obligation on the insured to furnish an award of appraisers except when an appraisal has been demanded by the insurer,” is not displaced or negatived by the doctrine enunciated in the Carnahan case, then our contention is untenable.
    But we maintain that the doctrines of the Carnahan and Finn cases are irreconcilable; both can not stand, and one must give way to the other. We have met this contention that there is a conflict between the two cases over and over again in the nisi prius courts, and sincerely hope that the dispute as to which case is authoritative on the question of appraisal conditions may be settled in this proceeding. We believe that the doctrine in the Finn case should be overruled, or at least the court should point out in what respects it should be distinguished from the Carnahan case. This is a consummation devoutly to be hoped for'.

      Messrs. Carpenter, Young & Stocker, for Silberman, defendant in error.
    The decision of this court in .the Carnahan cases, 63 Ohio St., 259, cited by counsel for plaintiff in error, does not appear to have any application to this case. One of the defenses made by the companies in those cases was that there was a disagreement as to the amount of loss, and that the companies demanded arbitration. No such defenses were made in this case. And it does not appear from the record in the Carnahan cases that the policies there involved contained the stipulation above referred to “including an award by appraisers when appraisal has been required.”
    We consider the case of Grand Rapids Fire Ins. Co. v. Finn, 60 Ohio St., 513, to be decisive of this question. The form of Silberman’s policy is identical with that- under consideration by this court in that case.
    We therefore adopt as applicable here the language of this court in that case as contained in the syllabus.
    This «decision which was concurred in by all the members of the court as then constituted has never been criticized, distinguished or overruled.
    Attention is called to the discussion of these-two cases, the Finn case and the Carnahan case, by the circuit court of the sixth circuit in German Ins. Co. v. Kistner, Admx., 26 Circuit Court, 569.

    But even if the doctrine of the Carnahan cases should be held applicable to the form of policy now under consideration, it would not require the reversal of the lower courts, because, as above seen, the amount of the loss and damage of Silberman was never disputed by the company, and no disagreement arose requiring arbitration.
    It should further be considered that the Finn case is in harmony with the decisions in other states upon policies in the same form. 4 Cooley’s Insurance Briefs, pages 3612 and 3616.
    In regard to the matter of waiver by denying liability, it seems inconsistent for counsel for plaintiff in error to claim that the trial court committed reversible error in stating to the jury that the company had denied liability, in view of the fact that during the trial such denial of liability on the date referred to was expressly admitted.
    Upon the question of the effect of such denial of liability we refer the court to 4 Cooley’s Insurance Briefs, page 3662.
   Davis, J.

These cases have been the subject of unusual and protracted consideration, not only on account of the intrinsic importance of the questions involved, but also because there is a divergence of views in the lower courts, and a variance between two reported decisions of this court. As an introduction to what we have to say now, it is also proper, if not really necessary, to direct attention to the fact that all of the policies now under review, the policy in Grand Rapids Ins. Co. v. Finn, 60 Ohio St., 513, and all of the policies in Phoenix Ins. Co. et al. v. Carnahan, 63 Ohio St., 258, except that of the Phoenix Insurance Company of Brooklyn, are substantially the same, in most cases identical, so far as they relate to the questions now before the court; and that the only material difference in the excepted policy is in the absence therefrom of the clause “including an award by the appraisers when appraisal has been required,” a difference which, in the view which we take of the meaning and effect of that clause, is of no consequence.

In several reported cases, not “in numerous cases and supported by the great weight of authority,” it has been assumed, rather than demonstrated by a proper course reasoning, that the effect of the clause quoted above is that the conditions relating to arbitration and appraisal do not become obligatory on the insured until appraisal has been required, in the sense of having been requested or demanded by the insurer, notwithstanding a stipulation in the policy, as in those now before the court, that, “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.”

The contrary view" is supported by several courts of high standing in carefully considered and well-reasoned opinions, which will be cited further on. It also logically results from the ruling in Ins. Co. v. Carnahan, supra, upon like policies, although in those cases there had been a demand for appraisal, by the insurers, that the condition as to arbitration or appraisement is a condition precedent and to entitle the insured to maintain-an "action to recover under the policy, he must show that he has either performed the condition or has a legal excuse for non-performance thereof. To statie it in another form, in case of a disagreement between the insurer and the insured as to the amount of the loss, the contract gives to the insured no right of action upon the policy, but only the right to enforce an award, unless the insurer has waived the condition by refusal to proceed under it, when requested, or otherwise. Carroll v. Girard Fire Ins. Co., 72 Cal., 297.

The supreme court of the United States, in Hamilton v. Home Ins. Co. of N. Y., 137 U. S., 370, held that “if a contract of insurance provides that no action upon it shall be maintained until after an award by arbitrators is made as to the amount due upon it, the award is a condition precedent to a right of action on the contract.” See, also, Hamilton, v. Liverpool & London Globe Ins. Co., 136 U. S., 242; Old Saucelito L. & D. Co. v. Com. Union Assur. Co., 66 Cal., 253; Scottish Union & National Ins. Co. v. Clancy, 71 Tex., 5. The last paragraph of these policies, respectively, contains-this clause: “This policy is made and accepted subject to the foregoing stipulations conditions.” A little above that occurs the following: “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.” It should be noted that the “requirements” here mentioned are requirements by the terms of the contract, not requests by the insurer; for they are requirements already made and “foregoing.” At the very beginning of the statement of the conditions of the polic3>- is the following: “This company shall not be liable beyond the actual cash valué of the property at the time any loss or damage occurs, and the loss or "damage shall be ascertained or estimated according to such cash value * * * said ascertainment or estimate shall be made by the insured and this compa^q or, if they differ, then by appraisers, as hereinafter provided; and the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be- payable sixty days after due notice, ascertainment, estimate and satisfactory proof of loss have been received by this company in accordance with the terms of this policy.”

Now, could a condition precedent be more express than this ? In case of difference or disagreement the “ascertainment” of the amount for which the insurer shall be liable “shall be made”by appraisers, and the amount “having been thus determined,” the same, not some other sum, shall be payable “sixty days after due notice, ascerlainment and satisfactory proofs of loss have been received by the insurer in accordance with the terms of the policy,” not in accordance with demand or request of the insurer. Beyond all reasonable dispute, this is an agreement to pay only after an award. But this is not all of the contract on this subject.

] t is again provided: “In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers,” etc., * * * “and' the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by the company.” At this point these stipulations seem to be complete, and, except for a slight but very important ambiguity, perfectly clear. Possibly the word “ascertainment” might have been referred to, and claimed to be confined to, the ascertainment of the loss and damage, by the insurer and the insured, when there is no dispute, as provided in the first condition which we have quoted; and therefore for greater certainty this clause is added, “including an award by appraisers when appraisal has been required.” It is true that the word “required” may mean “requested” or “demanded”; but it may also mean “made necessary” or “made an essential condition,” and the word “requirements,” as used in these policies, may mean “essential conditions” or “things made necessary” (see Century Dictionary), and that meaning should be adopted which would seem to be most in harmony with the other language of the contract. This phrase “when appraisal is required” is so strikingly different from the policies in reported cases which expressly provide for appraisal upon “the written request of either party,” or “when appraisal has been permitted,” that we may assume that it was intended to avoid the construction placed on such policies; and when we consider the painstaking care with which the obtaining of an award is defined as a precedent condition, all through the contract, we are not at liberty to adopt a meaning for this one word “required” and the word “requirements” which would destroy the effect of everything else that is written in the contract on this subject and entirely reverse its meaning.

When is an appraisal required or “made necessary” ex vi termini within this contract?

An award is not called for or required by this agreement in every case, because in many cases, doubtless in most- cases, there may be no dispute over the loss; but by the express agreement of the parties, in the strongest terms, it is required “if they differ” and “in the event of a disagreement.” By the terms of the contract it is provided that, in case of disagreement, the loss does not become payable unless an appraisal has taken place; the “policy is made and accepted subject to the foregoing stipulations and conditions,” one of which is that “no suit or action, on the policy shall be sustainable * * * until after full compliance by the insured with all the foregoing requirements.” It is very clear that the foregoing requirements are the requirements or conditions of the contract, and that the phrase can not fairly be applied to some future and contingent demand or request by one of the parties.

In a given state of circumstances, these policies plainly and definitely make the obtaining of an award, or at least an attempt in good faith to obtain an award, a condition precedent to a right of action on the policy; and it is elementary that the obligation of taking the initiative, or of showing an excuse for not doing so, is upon the party who has the affirmative in the action. “Where the parties, in their contract, fix on a certain mode by which the amount to be paid shall be ascertained, as in the present case, the party that seeks an enforcement of the agreement must show that he has done everything on his part which could be done to carry it into effect. He can not compel the payment of the amount claimed, unless he shall procure the kind of evidence required by the contract or show that by time or accident he is unable to do so” (United States v. Robeson, 34 U. S., 319, 327; see, also, 4 Encyc. Pl. & Prac., 632; 5 Ibid, 368; 1 Cyc., 692). So that, from all the foregoing considerations, our conclusion is that the clause, “including an award when appraisal has been required,” is very far from meaning “when appraisal has been requested by the insurer

Yet, by the construction which is urged upon us now, and which has been onc'e adopted by this court, a condition precedent which has been so clearly "expressed, is declared to-be no- condition precedent; and it is not available to the insurer even as a collateral condition unless upon its own demand. As we have already said, the courts which have adopted this construction have assumed, rather than demonstrated, its correctness. It has been fully discussed and its weakness, as we think, satisfactorily shown in Murphy v. Northern British and Mercantile Company, 61 Mo. App., 323; and again in McNees v. Southern Ins. Co., 69 Mo. App., 232; and these cases have become the settled law of the state of Missouri on that subject. We need not extend the discussion further. In accord with the later view are the opinions of the courts in Minnesota, Tennessee and Illinois, as follows: Mosness v. The German-American Ins. Co. of New York, 50 Minn., 341; Palatine Ins. Co. v. Morton-Scott-Robertson Co., 106 Tenn., 558; Phoenix Ins. Co. v. Lorton & Co., 109 Ill. App., 63.

Having the strong convictions as to the proper construction and legal effect of these policies, which we have endeavored to concisely express above, we are of the opinion that the former ruling of this court in Grand Rapids Ins. Co. v. Finn, 60 Ohio St., 513, was wrong and the same is now expressly overruled.

It follows that the judgment of the circuit court of Stark county should be, and it is, Affirmed; and that the judgments of the circuit court and court of common pleas in the cases from Wood county and Cuyahoga county, respectively, should be, and they are, accordingly Reversed and judgment will be rendered in both of said cases for the plaintiff in error. '

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


author: Spear, J.

text:
    Burns v. The State.

      Alibi — In criminal prosecution — Question of weight of evidence— Testimony as to character of accused — Improper allusion to a record not introduced — Charge to jury — Criminal lave.

    1. Where, in a criminal prosecution, the evidence of the state tends to prove the commission by the defendant of the crime charged at a particular time and place, and the evidence introduced by the defendant tends to show that at such time he was at another place, it is error for the court to refuse an instruction, requested by defendant’s counsel, that: “One of the defenses interposed by the defendant in this case is what is known in law as an alibi. That is, that the defendant was at another place at the time of the commission of the crime. The court instructs you that such a defense is as proper and as legitimate if proved as any other, and all evidence bearing on that point should be carefully considered by the jury. And if in view of all the evidence the jury have any reasonable doubt as to whether the defendant was in some other place when the said crime was committed, you should give the defendant the benefit of the doubt and find him not guilty. The court instructs you further that the defendant need not prove such alibi by a preponderance of the evidence. Neither does he need to establish it beyond a reasonable doubt, but if the evidence as introduced creates in your mind a reasonable doubt of the defendant’s guilt then your verdict should be not guilty, even although you should not be able to find that the alibi was fully proved,” and to fail to give any instruction whatever bearing specially upon the subject. Walters v. The State, 39 Ohio St., 215, approved and followed.
    2. The question as to the weight of the evidence being for the determination of the jury and not of the court, it is not error for the court to refuse an instruction that testimony as to the previous good character of the accused is entitled to great weight. The court would, however, be in the line of judicial duty, as favoring a fair trial, if it should give a pertinent instruction embodying the correct rule of law applicable to the evidence.
    3. Statements by the prosecuting attorney in his closing argument to the jury conveying the impression that a certain record which- had not been introduced in evidence would show, had the state been permitted to introduce it, that the defendant had been an inmate of the penitentiary, are improper, and should be disapproved by the court at the 'time. To overrule an objection to such statements, thus giving the court’s approval of them, is error.
    (No. 10209
    Decided January 22, 1907.)
    Error to the Circuit Court of Marion county.
    At the October term, 1905, of the court of common pleas of Marion, the plaintiff in error Robert Burns, was tried and convicted upon an indictment charging him with stealing a bay mare. Motion for new trial having been overruled, the accused was sentenced to a term of four years in the penitentiary. Upon error to the circuit court the judgment was affirmed. Burns brings error. Pertinent facts are stated in the opinion.

      Messrs. DeGolley & DeGolley, for plaintiff in error, cited and commented upon the following authorities:

      Walters v. State, 39 Ohio St., 215; Hooker v. State, 4 Ohio, 348; Clark v. State, 12 Ohio, 485; Griffin v. State, 14 Ohio St., 55; Harrington v. State, 19 Ohio St., 264; Stewart v. State, 22 Ohio St., 477; State v. Brown, 34 S. Car., 41; 12 S. E. Rep., 662; Underhill on Criminal Evidence, Sec. 80, p. 100; Miller v. State, 73 Ohio St., 195.

      Mr.. John H. Clark, prosecuting attorney, for defendant in error, cited and commented upon the ■following authorities:
    Hughes’ Instructions to Juries, Secs. 26, 27, 28 and 29; Hanoff v. State, 37 Ohio St., 178.
   Spear, J.

i . Among other defenses urged at the trial was that of alibi. The testimony of the state tended to prove the commission by the defend of the crime charged at a particular time and place. The defendant himself and another witness called by him testified to circumstances which, if truly related, established that the defendant could not have been at the place where the crime was charged as having been committed at the time of its commission. As applicable to this testimony the defendant’s counsel requested the court to charge this: “One of the defenses interposed by the defendant in this case is what is known in law as an alibi. That is, that the defendant was at another place at the time of the commission of the crime. The court instructs you that such a defense'is as proper and as legitimate if proved as any other, and all evidence bearing on that point should be carefully considered by the jury. And if in view of all the evidence the jury have any reasonable doubt as to whether the defendant was in some other place when the said crime was committed, you should give the defendant the benefit of the doubt and find him not guilty. The court instructs you further that the defendant need not prove such alibi by a preponderance of the evidence. Neither does he need to establish it beyond a reasonable doubt, but if the evidence as introduced creates in your minds a reasonable doubt of the defendant’s guilt, then your verdict should be not guilty, even although you should not be able to find that the alibi was fully proved.” This request was refused and no equivalent instruction given in the charge. The refusal was error. Walters v. The State, 39 Ohio St., 215; Lytle v. Boyer, 33 Ohio St., 506.

2. In further seeking to establish a defense the accused called a number of witnesses who testified that his general reputation in the community where he was known was.good. As bearing upon the effect of this testimony counsel for defendant requested the court to give this instruction to the jury, viz.: “The jury is further instructed that in all criminal trials where the- prosecution depends upon circumstantial evidence alone which is not conclusive in its character, previous good character on the part of the accused, if proved, is entitled to great weight in favor of innocence, and may of itself by the creation of a reasonable doubt produce an acquittal.” It was not error to refuse this instruction. The weight of the testimony is for the jury, and it would have been error to single out this class of testimony and say it was entitled to great weight. It was entitled to be considered with other evidence bearing upon the guilt or innocence of the accused, and the court would have been in the line of judicial duty as favoring a fair trial if an instruction directly embodying this rule had been given. The charge contains no instruction bearing directly on the subject. The charge as given is extremely brief and is confined to a few general propositions of law applicable to cases of this character, but does not purport to cover the salient features of the actual case made by the testimony. To avoid misunderstanding, it may be added that we do not overlook the distinction between reputation and character. The former is what people who have means of knowledge say of a person, the opinion generally entertained derived from common report; the latter is what the person really is, the assemblage of qualities which distinguish one person from another. But the terms are used interchangeably in the courts and the distinction not regarded.

3. In his cross-examination of the accused the prosecuting attorney propounded to him in varying form seventeen questions with respect to whether or not he had before been arrested, and whether or not he had been confined in the penitentiary of Michigan and of Ohio, all of • which he answered in the negative. Counsel for the accused objected to the persistence of the prosecutor in this line, and, in an-argument to the court in support of his objection, insisted that, as to such collateral matters, the prosecutor was bound, by the defendant’s answers. The objections were overruled and that line of interrogatories proceeded ad libitum. In the closing argument.. to ■ the jury the prosecutor used the following language: “I am going to read you a little law in regard to the questions asked Mr. Burns yesterday” (quoting from remarks made to the court on an objection to the introduction of testimony). “If the witness while being cross-examined is asked, ‘Have you ever been convicted of burglary?’ and replies that he has not, as the defendant in this case, the interrogating party is bound by his answer. So that, gentlemen of the jury, when the defendant’s attorney makes a great howl because I failed to introduce records of the Ohio penitentiary to show Mr. Burns had been an inmate there, it is all foolishness and the defendant’s attorney knows better. They know I would not be allowed to introduce the record to show that Mr. Burns was in the penitentiary and Mr. DeGolley, Jr., argued to the court yesterday that very law that the state was bound by the answer. I say, gentlemen of the jury, that is the reason I couldn’t introduce the record of the penitentiary to show that Mr. Burns had been there.” This statement was improper, and should have been so characterized by the court at the time. It carried to the jury an assumption that the record would, had the state been permitted to offer it, show that the accused had been an inmate of the penitentiary.

We are not concerned to inquire as to the guilt or innocence of the accused. Whether guilty or not, he was entitled, as is every person charged with crime, to a fair trial. That was not accorded him.

The judgments of the courts below will be reversed and the cause remanded for further proceedings according to law.

Reversed and remanded.

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