Butler Circuit Court.

ance company, which should have been submitted to the jury. The case of Barg v. Bousfield, 65 Minn. 355 [68 N. W., 45] relied on in support of the claim, is not in point, for the indemnity policy in the case cited was received in evidence as having a bearing on the question whether the person who executed the work, in the doing of which plaintiff was injured, was an independent contractor. The fact that the master holds such an indemnity policy, and requires the insurance company to defend, and it does so, an action against him by an employee for injuries caused by his alleged negligence, is not admissible, as tending to show an admission of negligence on his part or of the company defending." Also see the cases of Trenton Pass. Co. v. Guarantors' Liability Co., 37 Atl. Rep., 609 [60 N. J. L. 246]; Boston & Albany Ry., Co. v. Mercantile Trust & Deposit Co., 34 Atl. Rep., 778 [82 Md. 535; 38 L. R A., 97], which, although not directly in point, shed some light on the subject.

We are therefore of opinion that the trial court erred in the admission of the testimony on this point in Mr. Rupp's cross-examination and in its charge to the jury, and that such error was prejudicial.

It is further claimed that the court erred in its modification of the second and third special charges requested by the defendant to be given to the jury.

We are of opinion that the court was correct in the giving of these charges as requested in the first instance and before the argument, but toward the end of the general charge the court said, taking up the second special charge and reading it as follows:

"If you find that there was a defect in the appliances which was the proximate cause of the injury, and that the deceased, Charles Schubert, knew of such defect long enough before such injury to enable him to quit defendant's service, then the plaintiff cannot recover unless said deceased communicated such defect to the defendant and was promised by the defendant that the defect would be remedied.

"I think that is the whole case. No man is bound to work for another where his life is in danger; he can quit.

"But in applying that principle you apply it as you would to practical affairs, as men ordinarily deal with each other, the ordinary affairs of mankind; how do men ordinarily act toward each other in affairs of this kind? The jury is not expected to call up some hypercritical method of disposing of this question, but you are to look at it in an ordinary common sense way. How do men act with each other?

'While a mau has a right to quit, no man can compel another person to work for him while his life is in danger; as before stated, he does so at his own risk; if he knew of this soon enough to quit he could have quit.

"But it is for you to say, under all the circumstances, whether or not there were any promises made to him; if you find there was any that would be repaired, and whether he was justified under the circumstances to remain there or not."

And then taking up the third special charge and reading it:

"If the decedent was injured through any defect in the appliances of which he had prior knowledge, although he may have suggested a different or better method which the defendant promised to adopt, still plaintiff cannot recover unless decedent told the defendant of the particular defect causing the injury and the defendant promised to have the same remedied." Continued as follows:

Rupp v. Shaffer.

"As before stated, that is the substance of the whole case.

"After you have carefully examined all this evidence, and weighed it, and you should find in the case that the plaintiff, with these instructions that I have given you, was acting rightfully and properly, that he himself was not to blame, but that George Rupp was to blame, then you will find a verdict in favor of the plaintiff in this case.

"On the other hand, if you find that George Rupp was not to blame, then it is your duty to find a verdict in favor of the defendant.

"Or, if you find that George Rupp was to blame, and that Charles Schubert was to blame for the accident, then you will find a verdict in favor of the defendant; because, as before stated, where both are to blame the law dues not seek to apportion the respective amount each is to blame, and it leaves them where it finds them. Before plaintiff can recover, the deceased must have been without blame, and defendant must be to blame, as I have explained to you."

Section 5190, Rev. Stat., sub-section 5, provides as follows:

"When the evidence in 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."

And sub-section 7:

"A charge or instruction, when so written and given, shall not be orally qualified, modified or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case."

We are of opinion that the modification, explanation and amplification of these special charges by the court was in violation of the prohibition contained in paragraph seven of this section of the statute. We do not mean to say that the court having given the special charges as requested is prevented from treating of the same subject in its general charge, but it is manifestly contrary to the statute for the court, having read the special charge, to proceed orally to qualify, modify, or in any manner explain the particular special charge to the jury, as was done in this case. We are therefore of opinion that there was error in this regard prejudicial to the defendant.

Plaintiff in error objects to the following paragraph of the court's charge:

"But if he communicated that to Mr. Rupp; if he gave any information to him that would lead a reasonable man to investigate, to examine the condition of the thing at the time, and if Mr. Rupp could by the exercise of ordinary prudence have ascertained the condition of the machinery, that it was out of repair; if he could have ascertained that by the exercise of ordinary care, and he failed to do so, and his failure to do so, and the disrepair of the machinery was the proximate cause of the death of Mr. Schubert, then the plaintiff in this case can recover, and it will be your duty to find some amount for him, such as the evidence shows you his life was worth to his wife and to his children."

If this paragraph stood by itself the contention of plaintiff in error that it does not contain a statement that in order to make the defendant liable it was necessary that he should have promised or in some way indicated to his employee Schubert that he would have the necessary repairs made, or the defect remedied, or the machinery strengthened, and

11 O. C. D. Vol. 12

Butler Common Pleas.

that the absence of such statement in error would be correct; but taking the whole charge as it stands with its context, where the court speaks of the necessity of such a promise on behalf of the defendant Rupp, and of the manner and informal way in which it could have been made in order to make him liable, it is not erroneous.

"A charge is to be construed as a whole, and if so construed the law is correctly and intelligently given, the omission to embrace in each paragraph every condition to a recovery, where not calculated to mislead, is not erroneous." Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St., 608 [56 N. E. Rep., 457]; Curry v. Cincinnati, 4 Circ. Dec., 545 (12 R., 736); Monroeville v. Weihl, 6 Circ. Dec., 188 (13 R., 689).

While the paragraph selected is not a perfect or complete statement of the law in this regard, we think that the charge as a whole states the law fairly; but having concluded to reverse this case on the two grounds first mentioned, we call attention to the defect in this paragraph in order that it may be corrected at a subsequeut trial.

It is further contended that the trial court erred at the close of its charge where it spoke referring to the general and special verdicts as follows:

"In making up those verdicts they will have to be consistent with each other.

"For instance, it would not do to say you find in favor of plaintiff, and then find on this special verdict that George Rupp had no knowledge of this defect, or if Charles Schubert had knowledge of it he kept it to himself; the verdict must be consistent. If you find that George Rupp had no knowledge of the defect, then it would be your duty to find on this verdict in favor of defendant. I am only explaining these matters to you so you will be able to make up your verdict in a proper, consistent manner."

This part of the charge is not clear as to just how the desired consistency is to be reached. Of course, the jury is not to bend or twist their finding upon the special interrogatories away from what they believe to be the truth in order to make their answers conform to the general verdict. It is the general verdict which must conform to the special finding. True the statute says, Sec. 5201, Rev. Stat. :

"The court shall instruct the jurors, if they render a general verdict, to find specially upon particular questions of fact, to be stated in writing, and shall direct a written statement thereon, and the verdict and finding must be filed with the clerk and entered on the journal."

But a jury must not be permitted to think that for the purpose of sustaining a general verdict which they may desire to bring in they are, contrary to their convictions and independent of the truth, to make an answer with a view primarily to its consistency with a general verdict. Sec. 5202, Rev. Stat. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly. Middleport (Vil.) v. Taylor, 1 Circ. Dec., 534 (2 R., 366).

We do not, however, in this regard find error enough of a prejudicial character to reverse the case, had we not concluded to do so as above.

Judgment of the court below will be reversed and case remanded for a new trial.

Morehouse v. Burgot.

HIGHWAYS-TRESPASSER-ADVERSE POSSESSION.

[Lorain Circuit Court, May 4, 1901.]

MAX MOREHOUSE v. JosePH BURGOT ET AL.

Caldwell, Hale and Marvin, JJ.

1. TRESPASSER OBTAINS NO RIGHTS UNLESS PERMITTED TO MAKE LARGE IMPROVEMENTS.

A trespasser upon a highway can gain no rights unless the public stands by in silence and permits such trespasser to make a large outlay of money. Under such circumstances, the silence is the greater wrong and may deprive the public of its property by estoppel.

2. STATUTE OF LIMITATIONS DOES NOT RUN IN FAVOR OF TRESPASSER. The statute of limitations does not allow a party to do wrong and gain rights by it. Hence where an owner of land adjoining a highway undertakes to get possession thereof by trespass no statute of limitations runs in his favor.

8, OCCUPANCY DEFEATS Adverse PosseSSION.

Occupancy defeats possession by another under the statute of limitations. Therefore the owner of land adjoining a public road cannot get possession of it so long as it is occupied by the public notwithstanding this occupancy may be very small.

4. POSSESSION OF Two PERSONS SUCCESSIVELY.

If one person occupies property for ten years and abandons it, and another person obtains possession, not under the first occupant but independently, these facts do not establish title by possession in the last occupant: There must be privity of estate or some connecting link to establish title by the adverse possession of two persons.

APPEAL.

E. G. Johnson and F. M. Stevens, for defendants in error. Lee Stroup and W. W. Boynton, for plaintiffs in error. CALDWELL, J. (Orally.)

Max Morehouse against Joseph Burgot, supervisor, and Charles Maddock against Joseph Burgot supervisor; these two cases are alike and will be decided together.

In early times there was a road extending east and west along the bank of the lake in Sheffield township. There was a road running north and south down to that road, and there is evidence to show that north and south road extended not only to that road, but was continued further by being laid out and by use, on to the lake, on to the beach. There is evidence of logs being placed there and other property for floating. So that we find in this case that the north and south road did extend to the lake. But in the course of time the waters of the lake ate away the bank unt'l this early road was about to be, or in places was, destroyed. Thereupon another road was located further south from the bank and the oid road was thereupon given up. The old east and west road. The roadbed on the north and south road extending from the new road to the lake was not thereafter much used, but it was some used. Recently, it is shown, that the township authorities were about to undertake the improvement of it and make it more useful as a way t、 the lake and a hignway, and this suit was brought to enjoin them from doing it.

Lorain Circuit Court.

This suit is based upon two claims. First, there was an abandonment of this road, this end of the road between the new road and the lake. And second, that the statute of limitations has run.

And it is claimed that the evidence shows that ever since the making of the new road, that this piece of road between the new road and the lake has been closed up by the owners on each side, and that they have gained in that way, long years ago, gained the right to hold it from the township authorities, and to keep the township authorities from again using it as a highway, by reason of the statute of limitations.

The evidence as to that shows that Mr. Day for a long time owned the land on the west of this road, he never closed up any part of this road; he never undertook to take possession of any part of it. On the east Fitch owned the property, and he not only undertook to close the half of the road next to him, but he undertook to close the entire road, and it is claimed that he did keep it closed.

After a while Day sold his property to another party on the west, and it came into the hands of Maddock. Day owned it when he died and it came afterward into the hands of Maddock, and by some sort of an arrangement, as the evidence would lead us to believe, the owner on the east and the owner on the west then determined this road between them, and they mutually, or in some way, put a fence down the center of it. But this was after 1890. The possession of the west side of that road then shows simply this, that the owners of the land on the west side never until 1890 undertook to take any possession of it. Whatever possession prior to that time the owner on the east side had, or whatever possession he had taken of the road he then voluntarily gave up, and another party, not privy to his possession or connected with his possession in any way whatever, then undertook to close up the west side.

If A occupies property for ten years and gets up and moves out, and B goes in, not under A without transfer of possession or anything of the kind, and occupies it fifteen years more, they do not establish any adverse title at all. There must be some connecting link between the possession in order to put them together. There was none in this case according to the evidence; we find if there is a statute of limitations of twenty-one years it never has run as to the west half of this road, and that being true, unless there is something in the doctrine of abandonment separate from that of possession, there is no reason that the authorities cannot open the west side of this road.

As to the other part, the evidence shows in this case that there never was an exclusive occupation of this road, separate from the public.

A cannot gain possession of B's land and gain title to it if at the same time he is occupying it, B occupies it; that is impossible. That Occupancy may be very small, may amount to nothing scarcely, but yet

there is an occupancy at that time, it stops the statute right where it commenced. That was exactly the case with this entire road. There never was a time when the public did not go down that way to the lake; the evidence shows that clearly. It may be small, but that makes no difference. It shows this principle, that there was an occupancy by the public and these property owners at the same time; during the time that the property owners claim to have established title by exclusive pos. ssion, which they have not done, it establishes that principle, and that is the principle that is against their recovering this property in this