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Lorain Circuit Court.

by the exercise of ordinary care he would not have known that that spoke was broken; possibly they would. I am not prepared to say that we would find if they had answered in the negative a question put to them as to whether the decedent had such means of knowledge as that by the exercise of ordinary care, he would have known of this broken spoke; but that question was not put to them.

But it is charged in the petition that there was another defect in this wheel. There are several charged, but there is one relied on, and that is, there was a crack in the rim of the wheel. The part of the wheel which flew off and struck the decedent contained a part of the broken spoke which connected with the rim-the rim parted at a place where the plaintiff claims to have shown there was a serious defect in the rim. But it is urged that the decedent had equal means with the defendant of knowing of this defect. If the jury followed the instructions of the court, and they found that the accident resulted from this defect in the rim, they could not have found the verdict they did, without finding that the decedent did not have equal means of knowing this defect in the rim; because the court instructed the jury that if the accident was the result of this defect in the rim, and if the decedent had equal means of knowing of that which the defendant had, then the plaintiff could not recover. Not only that, but the court went further and said, if he had such means of knowledge as by the exercise of ordinary care he would have known of that defect in the rim, and if this accident occurred because of that defect, then the plaintiff could not recover. We must find, if we reverse on the facts, that the jury failed to follow the directions of the

court.

There was evidence tending to show that this defect in the rim must have existed for a considerable time. Attention has already been called to the fact that the decedent had no occasion to specifically know about this wheel, except in the removing of the shaft on which the wheel was, and on which other wheels were. We are not prepared to say that the jury should have said from these facts, that exercising ordinary care he would have known of this defect in the rim, and we are not prepared to say that the defendant would not have known by the exercise of ordinary care that this defect existed. But it is said that the petition does not say that the defendant would have known by the exercise of ordinary care, but simply that the defendant did know. The evidence establishes that the defendant was negligent, because in the exercise of ordinary care it would have known of this defect. We would not feel justified in reversing the case on the ground the petition did not so charge; for myself, it seems to me sufficient to say it knew. And proving that if it had exercised ordinary care it would have known, just what the logic would be of saying first that the defendant knew and then adding the defendant would have known by the exercise of ordinary care I do not know. If it knew that is enough. But in any event if the evidence showed that by the exercise of ordinary care the defendant would have known, then we would not feel justified in reversing it on that ground.

It is said that the evidence shows affirmatively that the decedent was negligent, that he stood near to this wheel when it burst and in the line of its revolution, so that he was in the same plane, perpendicular plane, as the wheel, and that he was so near to it was negligence, if he knew or had the means of knowing of the defects in the wheel. And it is said he certainly had the means of knowing of the defect in the spoke, and therefore he was negligent.

Stone Co. v. Richardson.

The evidence is, that after the shaft had been put back in its proper place, the wheel was started, carefully started, something about it did not go right; it was stopped, the decedent and somebody else adjusted it, did whatever was necessary to adjust it so they thought it would go right, and within a half a minute after it was again started it burst and killed this man.

We do not think that shows necessarily on his part negligent conduct, such as a prudent man would not have exercised; his superior was standing right by him.

Without going further into the case the judgment of the court of common pleas is affirmed.

LIFE INSURANCE COMPANIES.

[Cuyahoga Circuit Court, May 20, 1901.]

Caldwell, Hale and Marvin, JJ.

PHILLIP KELLEY v. D. BENDER ET AL.

1. Trustees of Life Insurance Companies not for PROFIT.

Section 3 of the act of April 25, 1898, Sec. 3631, Rev. Stat., providing that life insurance companies organized without any capital stock, upon the stipulated premium plan, shall be subject only to the provisions of such act excepting certain provisions of Chap. 8, Tit. 3, part 1, and Chap. 10, Tit. 2, part 2, Rev. Stat., applicable thereto, does not include Sec. 3261, Rev. Stat., relating to the liability of trustees of corporations not for profit. Therefore, trustees of suc corporations are not personally liable for death losses upon policies issue by the company while they were in office.

2. RULE OF CONSTRUCTION-Evidence OF INTENTION TO EXCLUde.

Section 2 of the act of April 25, 1898, making provision for the protection of policy holders of life insurance companies organized upon the stipulated premium plan, and Sec. 6 of the same act making provision for a reserve fund, clearly show the intention of the legislature to compel policy holders and beneficiaries thereunder to trust to the companies and the protection afforded them under the act itself, without making the trustees personally liable for losses thereunder.

HEARD ON Error.

F. E. Stevens, for plaintiff in error.

Bentley & Vickery, for defendant in error.

MARVIN, J.

But one question is raised in this case, and that arises upon the sustaining by the trial court of the demurrer to the petition of the plaintiff. That question is as to whether the trustees of a life insurance company organized under the act of the general assembly, passed April 25, 1898, Secs. 3631-24, Rev. Stat., et seq., and found in 93 O. L., 343, are personally liable for a death loss upon a policy issued by the company while they were in office as such trustees.

It is urged that they are so liable because, it is said, that such an insurance company is a corporation not for profit and that, therefore, the provisions of Sec. 3261, Rev. Stat., apply.

This sections reads:

Cuyahoga Circuit Court.

"The trustees of a corporation created for a purpose other than profit, shall be personally liable for all debts of the corporation by them contracted."

The act under which the company was organized, of which these defendants are trustees, provides for the organization of a life insurance company without any capital stock, and that its business shall be managed by a board of trustees.

In Sec. 3 of this act, 93 O. L., 343 [Bates Rev. Stat., Sec. 3631-26], this provision is made:

Such companies "shall be subject only to the provisions of this act, excepting that the provisions of chapter 8, title 3, part one, and of chapter 10, title 2, part 2, of the Revised Statutes, shall be applicable so far as the same are not inconsistent with the provisions of this act."

As Sec. 3261 is not found either in the act under which this corporation is organized or in that portion of the statutes which is mentioned in the section above quoted from, it would seem to follow that it has no application to this corporation; but it is urged that even if this be so, it still applies to the trustees of such corporation.

Doubtless Sec. 3261 was enacted because of the provision in our state constitution, Art. 13, Sec. 3, which reads:

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Dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock."

Since corporations not for profit, are authorized to be organized without any capital stock, the legislature found it necessary, in order to comply with this mandate of the constitution, to make provisions for the protection of the creditors of such corporation and hence enacted Sec. 3261, Rev. Stat.

The statute under which this corporation is organized, makes provision in Sec. 2, 93 O. L., 343 [Bates Rev. Stat., Sec. 3631-25], for the protection of policy-holders, in these words:

"Every corporation incorporating or reincorporating under the provisions of this act, shall deposit with the superintendent of insurance in such securities as are required by law to be deposited by insurance companies, the sum of five thousand dollars within one year after the date of such incorporation or reincorporation, and such incorporation shall each year thereafter, upon filing its annual statement, deposit in like securities with the superintendent of insurance, the sum of two thousand dollars on each million of insurance in force for the last calendar year, as shown by its said annual statement, until the sum of one hundred thousand dollars shall have been deposited. The securities deposited with the insurance department pursuant to this section shall be held by the superintendent in trust for the benefit and protection of and as security for the policy-holders of such corporation, their legal representatives and beneficiaries."

By Sec. 6 of the act 93 O. L., 343 [Bates Rev. Stat., Sec. 3631-29], a reserve fund is also provided.

We think it clear that it was not the intention of the legislature, that the trustees of such a corporation should be personally liable for payment of the policies, but that the policy holders and the beneficiaries under such policies, must trust to the companies and the protection afforded them under the provisions of the act itself.

Kelley v. Bender.

To say that the corporations are subject only to the provisions of this act and the statutes which this act provides such corporations shall be subject to, and yet that the trustees of such corporations are subject to the provisions of other statutes, would seem to be very technical. To hold otherwise, would be practically to make the act wholly inoperative, for it can hardly be conceived that any man not hopelessly insolvent, could be found to act as trustee for any such corporation if he were to be held personally liable for all losses under policies issued by the corporation.

The judgment of the court of common pleas is affirmed.

APPEAL NOTICE-ATTACHMENT.

[Cuyahoga Circuit Court, May 20, 1901.]

Caldwell, Hale and Marvin, JJ.

B. BERNHARD, etc. v. WILLIAM SCHWARTZ ET AL.

1. SUFFICIENT NOTICE OF Appeal from Justice Court.

Section 6494, Rev. Stat., relating to appeals from an order of a justice of the peace overruling a motion to dissolve an attachment upon giving notice of appeal, is not, by Sec. 6705, Rev. Stat., making certain provisions of Title 1, Part 3, Rev. Stat., applicable to certain provisions governing justices of the peace, controlled by Sec. 5227, Rev. Stat., providing that notice of intention to appeal shall be entered on the records within three days after judgment, but it is a sufficient compliance with the statute if notice be given within ten days, as provided by Sec. 6584, Rev. Stat., relating to appeals generally from justices of the peace; and especially if written notice thereof be given to the justice, upon which he transmits the original papers, etc., to the common pleas within ten days of making the order appealed from.

2 MOTION TO Dissolve Attachment-RIGHT TO MAKE.

While a defendant cannot move to vacate an order of attachment on the ground that the property attached does not belong to him, yet if the ground of the motion to discharge is that the affidavit upon the attachment issued was untrue the attachment may properly be discharged, notwithstanding the fact should appear that he was not the owner of the property levied upon.

& RULE AS To Reversal.

The fact that the evidence, as it appears in the reviewing court, is sufficient to arouse a strong suspicion of fraud against a defendant in attachment, is not sufficient to warrant that court in disturbing a judgment discharging the

attachment.

HEARD ON Error.

L. J. Grossman, for plaintiffs in error.

E. J. Thobaben, for defendants:

The defendants have the right to maintain their motion to discharge attachment on the ground that the affidavit on which attachment was issued is untrue, even though they do not claim any interest in the property attached. The question of costs are involved, and this is a sufficient interest in the action to justify the court in considering the motion to discharge. See Kinkead Code Pleading, 375; Northern Bank v. Nash, 12 Dec. (Re.), 75 (1 H., 153).

Cuyahoga Circuit Court.

Where a motion to discharge attachment is sustained, a reviewing court will not weigh the evidence, unless the trial court was manifestly influenced by passion or prejudice. Baer v. Otto, 34 Ohio St., 11; Seville v. Wagner, 46 Ohio St., 52 [18 N. E. Rep., 430]; 5 Circ. Dec., 84 [11 R., 18]; Bancroft v. Talbott, 29 Ohio St., 538.

MARVIN, J.

The plaintiff here brought suit against the defendants before a justice of the peace and by proper affidavit obtained an order of attachment to be issued against the defendants. Under this order the officer to whom it was issued, levied upon certain property. The defendants then filed a motion for an order discharging such attachment upon the ground that the averments of the affidavit upon which the attachment was based, were untrue. Upon hearing, the justice of the peace overruled the motion. The defendants then appealed from the order overruling the motion, to the court of common pleas. This was done under the provisions of Sec. 6494, Rev. Stat. It is provided in this section that if such motion be overruled, it "may be appealed by the defendant to the court of common pleas, if in session, or to a judge thereof in vacation, by giving notice to that effect to the justice of the peace, but nobond shall be required."

A motion to dismiss this appeal was made in the court of common pleas and overruled, and this is assigned as the first ground of error. One of the grounds upon which this motion was predicated, is that no proper notice for such appeal was given. It will be observed from the quotation already made from the statute, that nothing is said as to how or within what time such notice shall be given, but only that there must be given "notice to that effect to the justice of the peace."

It is provided in Sec. 6705, Rev. Stat., that "The provisions of title one of part third of the Revised Statutes, which are in their nature applicable to the proceedings before justices, and in respect of which no special provision is made in this title, are applicable to the proceedings before justices of the peace."

One of the sections under the title referred to, is Sec 5227, which provides that: "A party desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered, enter on the records notice of such intention."

It is urged that this provision must be applied to the appeal provided for in Sec. 6494.

We think this claim is not well taken. The statute providing generally for appeals from justices of the peace, viz., Sec. 6584, provides that a bond for such appeal shall be given within ten days. The section under which this appeal is taken, expressly provides that no bond shall be given. But it would seem to be a compliance with the spirit of this statute if the notice be given within ten days.

In the present case a written notice was given within that time. In any event, as appears by the file wrapper, the defendants gave notice to the justice upon which he acted and transmitted the original files to the court of common pleas, and this was all done within ten days of the time when the justice made the order.

We hold that the motion to dismiss the appeal was properly overruled.

The court of common pleas, upon hearing, discharged the attachment. It is urged that this holding was erroneous for two reasons:

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