Bernhard v. Schwartz.

First. That the defendants had no interest which could be affected by the order of attachment if the contention made by them were true, because their testimony in the hearing showed that the property attached was all sold by them before it was levied upon in attachment and was at the time of such levy the property of another. In support of this claim we are cited to In re Northern Bank of Kentucky v. Nash & Guild, 12 Dec. (Re.), 75 (1 H., 155), where this language is used by the

court:

"But, when, by the form and object of the motion and the facts shown, it appears that the defendant can really have no interest in the matter, cannot be benefited by the granting, nor prejudiced by the refusal of the motion, and the only effect would be to decide in a summary manner, a matter of contest between the plaintiff and third persons, which decision would be in no way obligatory on them, and might seriously prejudice the plaintiff, I do not think there is a proper case for the action of the court."

On the other hand, it is urged that the defendants have an interest in the determination of this motion, notwithstanding the claim made by them that the property attached is owned by another party.

It will be observed that the ground of the motion for the discharge of the attachment is that the averments of the original affidavit are untrue. Nothing appears in the motion, to disclose that the defendants have no interest in the attached property, but that fact was brought out in the evidence upon the hearing. If the contention of the defendants as to the ownership of the property is true, then the result of the motion to discharge the attachment, could not affect their rights in the property, but it does affect their rights to the extent at least of the costs made upon the attachment, for, if the motion should be sustained, they would be relieved from such costs, while, if it should be overruled they would be liable for the costs and would stand with the stigma of the fraud charged upon them in the affidavit for the attachment.

In re Northern Bank of Kentucky v. Nash & Guild, supra, a part of the syllabus reads:

"The right to discharge on motion must be limited to cases where defendant shows an interest in the motion and is prejudiced either by the granting or by the operation of the attachment.

Where, however, a motion is made to discharge an attachment on the ground that it was wrongfully obtained, no question, as to the interest of the defendants in the property attached, will prevent a full enquiry into the correctness of the grounds on which the attachment was predicated."

Again, in the opinion this language is used:

"When a defendent moves to discharge an attachment on the ground that it has been wrongfully sued out, I should not be inclined to permit any question as to his interest in the property levied on, to operate to prevent a full enquiry into the correctness of the grounds on which the attachment was predicated. In such a case his interest is clear, for the motion is directed against the foundation of an attachment against all his property."

And then follows the language first quoted in this opinion.

The case of Rowe v. Kellogg, 19 N. W. Rep., 957, [54 Mich. 206], cited by counsel for plaintiff in error, is a case where a petitior was filed by the assignee of the defendant in attachment for an order to dissolve the attachment. An application was also made by one of the

Cuyahoga Circuit Court.

defendants in attachment, and the question was made, that neither the assignee nor the assignor had any standing to authorize them or either of them, to apply for such dissolution, and the court held that each was entitled to make the question, and to reach the conclusion to which the court came it was not necessary to determine whether the defendant could have made the motion if he had no interest in the property, because it was held in that case that he had an interest which the court was bound to protect.

Another case cited by counsel for plaintiff in error, is that of Emerson v. Love, 2 Dec. (Re.) 348 (2 W. L. M., 480). In this case, the ground of the motion was, that the property attached did not belong to the defendant, and the court held that "A defendant cannot move to vacate an order of attachment on the ground that the property attached does not belong to him." An examination of this case will show that the court went no further than the quotation just made. There is no intimation in the case that if the ground of the motion had been that the affidavit upon which the attachment was originally issued was untrue, the motion would not have been entertained although it should appear, as a matter of fact, that the property was not owned by the defendant. The case of Mitchell v. Skinner, 17 Kans., 563, is to the same effect, and it is there held that "it is not competent for the defendant to move the court to discharge an attachment, or set aside a levy under an execution, on the ground that the property attached or levied upon does not belong to him."

Other authorities to the same effect are numerous; but we believe no case will be found where the court has refused to entertain a motion to dissolve an attachment on the ground that the affidavit upon which it was issued, was untrue, even though the fact should appear that the defendant was not the owner of the property levied upon.

It is further urged that the court erred in discharging this attachment because of the facts which appeared in evidence upon the hearing. That evidence is all before us, embodied in a bill of exceptions, and while there are circumstances which might naturally arouse a strong suspicion of fraud in the transfer of property of the defendants, we do not feel justified in saying that the evidence is so clear that there was fraud as would justify us in reversing the judgment upon that ground, and, we, therefore, affirm the judgment of the court of common pleas.

LIFE INSURANCE,

[Trumbull Circuit Court, April Term, 1901.]

Burrows, Laubie and Cook, JJ.

NORTHWESTERN MUTUAL LIFE INSURANCE Co. v. Mabel J. Risley. 1 SECTION 3625, REV. STAT. PART OF CONTRACT OF LIfe Insurance. Where the assured stated in the written application to the company for a policy of life insurance that he did not use intoxicating liquor at all, but was a total abstainer from the same, which statements were untrue, such statements, under Sec. 3625, Rev. Stat., will not defeat the right to recover unless it be clearly proved that the statements were not only wilfully false and fraudulently made, but that the same were material and induced the company to issue the policy.

Insurance Co. v. Risley.

2. QUESTION OF FACT FOR THE JURY To Decide.

The question whether or not such answers were wilfully false and fraudulently made, and were material. and induced the company to issue the policy, is a question of fact to be determined by the jury under proper instructions from the court.

3. Charge AS TO WHAT CONSTITUTES INTEMPERATE HABITS IN SUCH CASE. Where the assured answered in the application that he did not use intoxicating liquor at all, in any quantities or of any character, which answers were untrue, it was error for the court to charge the jury "That for a man to occasionally use intoxicating liquor or to use it in moderation and an occasional indulgence to excess does not render a person an intemperate man." HEARD ON Error.

Squire, Sanders & Dempsey and John J. Sullivan, for plaintiff in

error.

Gillmer & Roberts, for defendant in error.

COOK, J.

The Northwestern Mutual Life Insurance Company issued two policies of insurance for a thousand dollars each upon the life of Sylvanus H. Risley, payable to his daughter Mabel J. Risley. Both policies are of the same character and both were issued upon a written application of the assured signed by him. In the written application Risley, in answer to questions, represented "that he did not use intoxicating liquors of any character or in any amount and never had done so."

This action was brought upon these two policies and the defendant company, by its answer, averred that these answers were wilfully false, and fraudulently made, that the representations were material to the risk and induced the defendant to issue the policies, and therefore the policies were void and plaintiff should not recover upon the same. The case being tried to a jury there was a verdict and judgment in favor of plaintiff.

Plaintiff in error upon the hearing of the petition in error made two questions only.

First-That the applications are part of the contracts of insurance; that the answers of the assured in reference to his use of intoxicating liquor, being a matter of which he must necessarily have had knowledge, were wilfully false and fraudulent, and avoided the policies; that the company was the sole judge as to whether or not the false and fraudulent representations were material to the risk, and induced the company to issue the policies; and that the provisions of Sec. 3625, Rev. Stat., did not affect the contract of insurance, but only the remedy.

Second-That if the company was not the sole judge as to whether or not the false representations were material to the risk and induced the company to issue the policies, then it was a question to be decided by the court and should not have been submitted to the jury.

These two questions were made upon the eleven requests asked by defendant company to be given to the jury, all of which were refused by the court. They were all substantially alike and were to this effect: "That if the jury should find from a preponderance of the testimony that Sylvanus H. Risley, at the time he made the applications for insur ance, did use malt liquor, spirits or other alcoholic beverages at any time in any degree, and the soliciting agent of the company that took

Trumbull Circuit Court.

said applications for the company at the time said policies were issued had no knowledge that such was the fact, your verdict should be for the defendant."

That the applications became part of the contracts of insurance must be conceded, but at the same time the provisions of Sec. 3625, Rev. Stat., modifying the effect of the applications also became part of the contracts of insurance; that is, the answers must be read in connection with the statute and the legal effect of the answers must be controlled by its provision.

It seems to us that such is the plain language of the statute. "No answer to any interrogatory made by an applicant in his or her application for a policy shall bar the right to recover upon any policy issued upon such application, or be used in evidence upon any trial to recover upon such policy unless it be clearly proved that such answer is wilfully false, and was fraudulently made, that it is material and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and moreover that the agent or company had no knowledge of the falsity or fraud of such answer.

Mark the language: "No answer to an interrogatory made by an applicant in his or her application for a policy shall bar the right to recover upon any policy."

Prior to the passage of this statute, wilfully false and fraudulent answers upon a material question annulled the contract of insurance, absolutely barring the right to recover; now such answers by force of the statute are of no legal effect unless they are material to the risk and induced the company to issue the policy. To this effect also, as we understand it, is the decision of our Supreme Court in John Hancock Lite Ins. Co. v. Warren, 59 Ohio St., 45 [51 N. E. Rep., 146].

The next question made was that it was the duty of the court to determine what was material to the risk; that is, what use of intoxicating liquors would materially affect the hazard of the risk.

In this case we do not think so. In Union Mutual Life Ins. Co. v. Reif, 36 Ohio St., 596 [38 Am. Rep., 613], and Insurance Co. v. Foley, 105 U. S., 350, the court does lay down the rule as to what would constitute a man of intemperate habits, but in this case the questions and answers were entirely different. The question made in those cases was as to the habits of the assured, and therefore the court was called upon to determine what constituted a man of temperate habits, but in this case the question was did the assured use intoxicating liquors at all, and if so, was the risk increased by the use of intoxicants in the manner he did use them.

In some cases the risk might be increased; in others the use of intoxicants, to the extent it was claimed that the assured in this case nsed them, might not increase the risk at all. It therefore was a question of fact for the jury to determine under proper instructions from the court as to whether or not the false and fraudulent answers in this particular case were material. The case of Moody v. Insurance Co., 52 Ohio St., 12 [38 N. E. Rep., 1011; 26 L. R. A., 313; 49 A. S. Rep., 699], we think is analogous to this case and supports our position. This disposes of the two questions made by plaintiff in error upon argument.

However, there is another question which is fatal to the judgment of the court below. Defendant in error before argument submitted to the court a number of requests which he asked to have given to the jury, which was done over the objection and exception of plaintiff in error.

Insurance Co. v. Risley.

Among the requests was the following: "Defendant claims that the assured, S.H. Risley, made untruthful, false and fraudulent answers as to his habits of drinking spirituous, malt and vinous liquors. The court says to you, even though you find the answers to these questions or any of them were untrue, nevertheless unless they were material, unless they enhanced the risk and rendered the same more hazardous for the company it cannot avail as a defense. In determining whether or not they were material, you will seek from the evidence what the decedent's habits were in respect to drinking and the court says to you, to use intoxicating liquor in moderation and an occasional indulgence to excess does not render a person an intemperate man. If the habits of the assured, S. H. Risley, in the usual ordinary every day routine were temperate, his representations that he was and always had been a man of temperate habits were not untrue within the meaning of the policy, although he may have had an attack of sickness from an instance of over indulgence."

This was clearly error. As we have seen, there was no question as to the habits of the assured The question was, did the assured use intoxicating liquor at all, and if he did, was it material? Did it increase the risk? This was a question of fact for the jury to determine.

In this request the court practically told the jury that the temperate use of intoxicating liquor by the assured would not make the answers in the applications false and fraudulent or increase the risk. Indeed if he had used liquor to such an extent as to produce sickness from an instance of over indulgence that would not make the answers material by increasing the risk. These were questions for the jury to determine.

For this error the judgment must be reversed and the cause remanded for a new trial.

CONSTITUTIONAL LAW-HIGHWAYS.

[Cuyahoga Circuit Court, May 29, 1901.]

Caldwell, Hale and Marvin, JJ.

STATE EX REL. v. W. E. CRAIG, AUD., ET. AL.

1. RIGHTS NOT INVOLVED NOT AVAILABle to Defeat Law. The act of April 16, 1900, 94 O. L., 364, supplementing Secs. 2822 and 4637, Rev. Stat., authorizes county commissioners to improve county and state roads where no private property is taken. Therefore, where it does not appear that any individual property rights are invaded in a contemplated improvement, the action of the commissioners is within the authority conferred by the statute and should be upheld notwithstanding it might be otherwise or the statute objectionable if individual property rights were involved.

2. ACT SUPPLEMEnting Already Complete Law DISREGARDED.

Section 4637-1, Rev. Stat., et seq., act of April 16, 1900, 94 D. L., 364, conferring ample power upon county commissioners to improve county roads, determine the cost and expense of the same, providing the means and mode of making the assessment, and being complete and constitutional, are not affected by the apparently conflicting Sec. 2822-2, Rev. Stat., as to assessments, of the same act, it not appearing what purpose there was in adding such provisions to an already complete act; and as to improvements falling within Secs. 4637-1, Rev. Stat., the conflicting provisions of Sec. 2822-2, Rev. Stat., should be disregarded.