Page images
PDF
EPUB

Jennings v. Shepherd.

#

Stubbs v. Mulholland, 168 Mo. 47 (07 S. W. Rep. 650]; Jones v. Finch, 84 Va. 204 [4 S. E. Rep. 342] ; Broun v. Vittur, 47 La. Ann. 607 (17 So. Rep. 193); Ross v. Hizon, 46 Kan. 550 [26 Pac. Rep. 955; 26 Am. St. Rep. 123] ; Smith v. Clark, 37 Utah 116 (106 Pac. Rep. 653] ; Frost v. Holland, 75 Me. 108; Munns . Dupont, 1 Am. Lead. Cas. 184; Johnson v. Chambers, 32 N. C. 287; l'inal v. Core, 18 W. Va. 42; Eggett v. Allen, 119 Wis. 625 (96 N. W. Rep. 803?; Barhight v. Tammany, 158 Pa. St. 545 (28 Atl. Rep. 135; 38 Am. St. Rep. 853).

The case of Davis v. McMillan, 142 Mich. 391 (105 N. W. Rep. 862; 3 L. R. A. (N. S.) 928; 113 Am. St. Rep. 585), reviews a number of decisions on the subject and especially those holding that the discharge by the magistrate is not prima facie evidence of the want of probable cause, and among them is the case of Israel v. Brooks, 23 Ill. 575, 577, in which the writer of the opinion undertakes to state the reasons for holding that a discharge, by the magistrate, is not prima facie evidence of the want of probable cause, thus :

* How many justices are there in obscure localities who are as little capable of determining what is probable cause for a criminal prosecution as they are of explaining any of the phenomenon of nature? How many do we find prejudiced against a public accuser, how many in sympathy with the accused? The decisions of such an official on intricate questions of law or fact should not weigh against the accused and they do not practically; for, if he is committed, the grand jury pay no attention to the finding of the magistrate. It is not prima facie evidence of his guilt, and how preposterous it is to say the discharge of a criminal is prima facie evidence of want of probable cause.

It is not so and should never be so regarded!” This line of reasoning, which is quoted in Davis v. McMillan, supra, with approval, leads to an entirely erroneous conclusion.

Public officers are presumed to do their duty and their acts are presunied to be regular. While courts of general jurisdiction and of review may not indulge these presumptions in all respects as to courts of inferior and limited jurisdiction, yet

Pickaway County Appeals.

they will presume that magistrates have intelligence enough to pass upon the questions which they are required to pass upon and that they do act honestly. Where a court of limited and inferior powers has acquired jurisdiction, its acts are presumed to have been rightly and honestly done. The fact that some magistrates may be ignorant and liable to be prejudiced does not overthrow the presumption. When a public officer, charged with the duty of determining a controversy, performs that duty the inference naturally and logically arises that his determination was just. Hence, since magistrates in our state are charged with the duty of determining the question of probable cause in criminal cases, such determination, in the absence of any other evidence, ought to be and is prima facie evidence of the fact determined. But this is true only when such magistrate has held a preliminary trial and has heard the evidence produced, because only then can he pass upon the question of probable cause.

The charge of the trial court in this respect was not erroneous

Walters and Jones, JJ., concur.

APPEAL-INSURANCE.

(Hamilton (1st) Court of Appeals, March 14 and April 10, 1914.)

Swing, Jones and Jones, JJ.

POSTAL LIFE INS. Co. v. HORACE W. HARMEYER ET AL,

*HORACE W. HARMEYER V. INSURANCE Co.

1. No Appeal from Cincinnati Superior Court to Court of Appeals.

There is no right of appeal from the superior court of Cincinnati

to the court of appeals, Thompson v. Building Assn. 7 Circ.

Dec. 68 (13 N. S. 250), followed and approved, 2. Assignee of Life Policy Limited to Insurable Interest.

Under the assignment of a life insurance policy, the assignee

is entitled to recover out of the proceeds only the amount of his insurable interest.

APPEAL and ERROR.

*Affirming, Postal Life Ins. Co. v. Harmeyer, 26 Dec. 141. Motion to certify record overruled by the Supreme Court, June 9, 1914, Harmeyer v. Schmidt, 59 Bull. 222.

Insurance Co. v. Harmeyer.

Frank H. Kunkel, for administratrix.
Thos. L. Michie, and C. C. Kearns, for Harmeyer.

PER CURIAM.

It was held in the case of Thompson v. Building Assn. 7 Circ. Dec. 68 (13 R. 250), that as the law then was there was no right of appeal from the superior court of Cincinnati to the circuit court. There has been no change in the law, organic or otherwise, since the decision in that case, affecting the question.

The motion to dismiss the appeal is sustained.

SWING, J.

This is an action in this court on error to the judgment of the superior court of Cincinnati. The action arose out of a policy of insurance issued by the Postal Life Insurance Company on the life of Adolph Schmidt. The life insurance company filed its petition in said court setting forth the policy and stating the amount due on the policy and brought the money into court making Carrie Schmidt, administratrix of Adolph Schmidt, deceased, and Horace W. Harmeyer defendants, alleging that both parties claim the proceeds of said policy.

Harmeyer and Schmidt both filed answers, each claiming to be entitled to the proceeds of said policy, excepting from it the amount paid by said Harmeyer, which was admitted by Mrs. Schmidt as being due to said Harmeyer, having been paid by him on said policy during its continuance.

Plaintiff below pleads that Schmidt took out a policy for $5,000 on his life, in the Provident Savings Life Assurance Society of New York, April 27, 1896, and that he continued to pay the annual premiums on same until April 22, 1911, when he assigned said policy to Horace W. Harmeyer. The assignment is as follows:

“For value received I hereby assign and transfer unto Horace W. Harmeyer, No. 519 Main street, Room 208, Lincoln Inn Court, in the city of Cincinnati, state of Ohio, Policy of Insurance No. 76,203 issued by the Provident Savings Life Assurance Society of New York upon the life of Adolph F.

11 O. C. C. Vol. 36

Hamilton County Appeals.

Schmidt of Cincinnati, Ohio, and duly reinsured in the Postal Life Insurance Company, all dividends, benefits and advantages to be had or derived therefrom, subject to the conditions of the said policy and to the rules and regulations of the company, and subject and subordinate to any indebtedness to the company.

“It is expressly agreed that before any payment shall be made by virtue of this assignment, satisfactory proofs of the insurable interest of the assigned shall be furnished to the compaay, and the company shall not be liable for any sum in excess of such insurable interest.

Witness my hand and seal, at Cincinnati, Ohio, this twenty-second day of April, 1911.

“(Signed) ADOLPH F. SCHMIDT." The policy contained this provision :

“Any assignment of this policy must be in writing, and a duplicate thereof must be furnished the society. Any claim arising under an assignment shall be subject to satisfactory proof of insurable interest existing at the death of the insured or at the date of such claim, if prior thereto, and the society shall be liable to the assignee to the extent of that interest only; but the society will not assume any responsibility for the validity of an assignment."

On the back of the policy there was also written, at the same time, the following:

“CINCINNATI, O., April 22d, 1911. “The consideration for which this agreement was made, having been fully paid and satisfied, I hereby relinquish all right, title and interest in Policy No. 76,203, on the life of Adolph F. Schmidt (and my estate as beneficiary) of Cincinnati, Ohio, as provided by this agreement. That said Horace W. Harmeyer, his heirs, assigns, becomes the beneficiary under said policy No. 76,203.

“Witness my hand and seal on the day and date above mentioned.

"Adolph F. Schmidt, Assignee. "Signed in the presence of Edward L. Heckel, Witness."

Insurance Co. v. Harmeyer.

As stated, Harmeyer by virtue of this assignment claimed to be the sole beneficiary, whereas Mrs. Schmidt claimed that he was entitled to receive only the amounts paid on said policy together with the interest accruing thereon.

Under these pleadings the case was tried in said court and the following judgment rendered :

"This cause coming on to be heard on the petition of the plaintiff, the answer and cross petition of the defendant Horace W. Harmeyer, and Carrie Schmidt as administratrix of the estate of Adolph F. Schmidt, deceased, and the evidence, and the court being fully advised in the premises finds that the Provident Savings Life Assurance Society of New York issued a policy of insurance in the sum of five thousand ($5,000) dollars on the life of Adolph F. Schmidt, and that the plaintiff the Postal Life Insurance Company assumed the payment of said policy, that among other conditions in said policy it was provided that in the event said policy is assigned by the insured, that the company shall be liable to the assignee to the extent of that insurable interest only; that said policy was assigned by the insured to one Horace W. Harmeyer subject to the conditions of said policy, and to the rules and regulations of the company, and it was further agreed in the said assignment that before payment shall be made by virtue of the assignment satisfactory proofs of the insurable interest of the assignee shall be furnished to the company and the company shall not be liable for any sum in excess of such insurable interest.

“The court further find that the plaintiff deposited with the clerk of the court the sum of $1,533.19 which was the amount due under said policy after deducting an indebtedness of the insured in favor of said company.

“The court further find that the defendant Horace W. Harmeyer refused to furnish the plaintiff any testimony as to his insurable interest in the life of Adolph F. Schmidt, deceased, and that as a matter of fact the said Horace W. Harmeyer had no insurable interest in the life of Adolph F. Schmidt excepting as to the premiums and interest paid by him to the said

« PreviousContinue »