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Insurance Co. v. Fish Co. et al.

23d day of June, 1879, a little over three months afterwards. We are confident from such examination as we have been able to make that there will not be found in the House or Senate Journal any reference to this Howland Law after it was passed, nothing tending to show that the legislature had it under consideration again, or intended to make any change, especially such radical change as would have resulted in overturning the rule so recently adopted by the same legislature as to concurrent insurance.

The codifiers or commission that had in charge the codification of the law were not, as is well understood, vested with any authority to make changes, that is to say, any changes that would change the law. Their authority was under an act of the legislature passed upon the 7th of March, 1875, and appearing in Vol. 72, page 87. I do not find a copy of the session law here—but I will read from the preface of the Revised Statutes what, according to my recollection, is an exact statement of what appears

in that act. "The governor was required, by and with the advice and consent of the senate, to appoint three competent commissioners to revise and consolidate the general statutes of the state, and he was authorized to fill any vacancy in the commission.

"In performing the duty, the commissioners were required to bring together all the statutes and parts of statutes relating to the same matter, omitting redundant and obsolete exactments, and such as had no influence on existing rights or remedies, and making alterations to reconcile contradictions, supply omissions, and amend imperfections in the original acts, so as to reduce the general statutes into as concise and comprehensive a form as might be consistent with clear expression of the will of the general assembly-rejecting all equivocal and ambiguous words, and circuitous and tautological phraseology.

"They were required to arrange the statutes under suitable titles, divisions, subdivisions, chapters, and sections with head notes briefly expressive of the matter contained therein, with marginal notes of the contents of each section, with reference to the original act from which it was compiled, and foot notes of the decisions of the supreme court upon the same; and they were required to report the whole, in print, to the general assembly for its adoption."

From time to time they were required to make reports of their pregress, and this appears to have been done, and according to our information in no instance did the codifiers attempt to make any radical change in the law without bringing the matter to the attention of the legislature; they were not authorized to do so and in this instance it appears that they did not attempt to do so.

The difference between the Revised Statutes and the original act is the difference of one letter only. The word "or” in the Revised Statutes reads "of" in the original act. It might be pointed out in the decisions of the supreme court since the codification how the supreme court has viewed the matter, and where they have disregarded changes, and have put upon the Revised Statutes the same construction as had been given to the law before it was codified, although there had been some change in phraseology which might admit of a different construction, where it was not clear that a different construction was intended. There are many illustrations of this running through the decisions of the supreme court.

Ottawi Circuit Court.

We feel quite sure that this change of one letter is a typographical error, and we therefore so regard and treat it.

The fourth proposition requested is as fo.lows:

“The insured property as described in the policy in this case is as follows: 'On their shingle roof frame building with frame composition roof and addition thereto attached including docks, and foundations, occupied by assured for their fish business, etc.

"I instruct you that this policy covered the buildings, the addition and also the docks. It is admitted that the building itself was totally destroyed by the fire; but the defendant claims that the docks were only partially destroyed. If you find that the docks were only partially destroyed, and that a substantial portion of them remained uninjured, then and in that case I instruct you that the loss was not total, and the plaintiffs cannot recover.”

This was properly refused; it was for the jury to say whether or not it was one structure. If one structure the loss may be total although the property may not be totally destroyed. These propositions are not recognized in the requests to charge.

The fifth proposition requested reads as follows:

'If you find that portions cl the docks were built after the warehouse was erected, and that the docks were constructed upon piles that were not under the main building, or the offices, and did not support either the main building or the office, and that the dock east and west of the building was complete in itself, in such case you may find what proportion of such dock was injured by the fire, and if a substant portion of the docks remained uninjured after the fire, then and in such case the plaintitis cannot recover."

This was properly refused because the character of the superstructure is not to be fixed necessarily and solely by the time when or cruti in which the different parts were constructed.

The sixth proposition requested by the defendants reads as follows:

I! you find that the building was erected and occupied as a fish house !or some time prior to the erection of the forty 'eet of the dock oprle east and you further find that such forty feet oi the dock was not totaily consumed, and that a substantial portion of the same remained after the fire, then your finding should be that the loss was not tota., and your verdict should be for the defendant."

This proceeds upon the theory that the dock and fish house are diferent and independent structures, a matter which was passed upon by the jury, and the jury found they were one structure.

I will not take the time to go through the remaining requests to charge, which are numerous, and point out particularly the faults we find in them, but briefly, we find that each and every one of them contains some one or more of the laults I have indicated in those that I have read and commented on, and we hold that the court did not err in refusing to give these charges. They are based upon the assumption either that the fish house and docks were, as a matter of fact, separate and distinct structures, or that it is the law that where there is concurrent insurance and a total loss an insurer is not liable for the whole amount of the policy.

We find no error in the charge of the court, though various errors are urged, but the claims of error are generally based upon one or the other of these two theories which I have mentioned, and which we find to be wrong. We find that the verdict is supported by the evidence:

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Connelly v. Cake et al.

that the jury was warranted thereby in finding that the loss was total and not partial.

Exceptions were taken to various questions and answers whereby the plaintiff was permitted to show that the cost of utilizing the planking would be greater than the value of the planking utilized either for the purpose of re-building or any other purpose. We see no error in this. We think it is fair and legitimate to show that the loss was total even if some parts were not consumed by the fire.

We find no error in the proceedings or in the record and the judg. ment of the common pleas court is affirmed.

A. T. Brewer and Wm. Gordon, for the Insurance Company.
E, G, Love and C. I. York, for The Port Clinton Fish Co.

NEGLIGENCE-DAMAGES.

(Lucas Circuit Court, February 8, 1895.)

Bentley, Scribner and Haynes JJ.

WILLIAM CONNELLY V. JAMES H. CAKE, ET AL. RECOVERY FOR INJURY CAUSED BY DEFECTIVE MACHINERY.

In an action for damages for an injury alleged to have been caused by a defect

in the machinery upon which plaintiff was at work, and the jury upon a full consideration of the evidence found that the plaintiff had shown that the ma. chinery was defective and that the injury had occurred from the defect existing in the machinery, in such case the plaintiff will be entitled to recover damages

for the injury received. SCRIBNER, J.

Upon the calling of this case, counsel who filed the petition in error here stated that the case was originally defended by the Insurance Company, one of the desendants, but that they had failed and the plaintiff in error also had failed_indeed he failed before the Insurance Company did—and that the defendants here did not feel able to employ counsel and did not care to have themselves represented. He stated that he said to his client that he would have the case marked as submitted, and leave it sor the court. We suppose the court is not bound under these circumstances, to take the record in hand here and see whether there is error or not. Nevertheless, we have in this case proceeded to read the record.

This action is brought for the purpose of reversing the judgment of the court of common pleas in a case wherein James Cake was plaintiff and the Connelly Bros. were defendants with others and upon a final hearing of the case, a judgment was rendered in favor of the other defendants, that is to say, perhaps, one other defendant , the Insurance Company, which was made a party but not served with process. The two Connellys were made defendants, under the claim that they were partners. Daniel Connelly denied that he was a partner, and the court sound in his favor upon that issue, and the jury returned a verdict against the other Connelly and in favor of the company in the sum of $5,000.

The record shows that Connelly was carrying on the business of boiler making, or boiler repairing, in a shop situated near the Lake Shore depot. The shop had burned and they had re-established it and were

Ottawa Circuit Court.

carrying it on. James H. Cake came into the employment of the defendant a day or two before he was hurt, perhaps the day before. He had been at work prior to that on a farm. They had certain machinery that they used for the purpose of hoisting boiler plates and lowering them and swinging and placing them upon the anvils, or places where they were to have holes punched in them; and, in carrying on this operation, Cake, having hold of a piece of boiler plate that was being handled for the purpose of steadying it and holding it in its place until it had reached the place where it should be deposited; and the chain that supported the plate suddenly gave way, or slippd off from the pulley, and the boiler plate, of course, fell, and it fell upon the feet of Cake, from which he received injuries which will last him as long as he lives.

He produced a witness who testifies that he had helped to put up this machinery, the day before; it had been brought in from another place, where it had remained after the fire, and been put up; and that there was broken and lost a certain piece of iron, or some instrumentality that was placed at or near the pulley for the purpose of keeping the chain on the pulley, and that it was from the lact that this piece of iron was broken and lost, that the chain slipped off from the pulley and the accident occurred. He was cross-examined and subjected to a very severe cross-examination.

The defendant then offered testimony tending to show on its part, that the machinery had stood there some little time. They admitted the falling of the boiler plate, but they were unable to show why it sell or give any reason for its falling, it might be by one thing and it might be by another.

The jury upon a full consideration of the evidence, found that the plaintiff had shown that the machinery was defective and that the injury had occurred from the defect of the machinery, and we are not disposed to disturb the verdict in that respect. We are rather inclined to think that the plaintiff's witness stated the truth in regard to it.

There was an exception taken to the refusal of the court to charge the jury, but under the evidence in the case, while one of the propositions is correct law, yet, under the facts of the case as shown by the record, it had no application to the case and was therefore properly refused.

The judgment of the common pleas will therefore be affirmed in this case, but reasonable cause certified for taking the case to the circuit court.

MUNICIPAL CORPORATIONS-APPROPRIATION

OF PROPERTY. l'Ottawa Circuit Court, July 1, 1896.)

Scribner, Haynes and King, JJ. THE INCORPORATED VILLAGE OF PUT-IN-BAY, OHIO, V. THOS. E.

WEBB ET AL. 1. ENJOINING THE USE OF PROPERTY SOUGHT TO BE APPROPRIATED.

Where plaintiff, a municipal corporation, seeks to enjoin a party from cutting

trees on certain lands, which plaintiff alleges in its petition it has come menced proceedings in the common pleas court to appropriate under a statute giving it that power, and defendant answered denying the allegations

Village of Put-in-Bay v. Webb et al.

.

in the petition and also set up a cross-petition asking for a counter injunction enjoining plaintiffs from prosecuting their aforesaid appropriation proceedings: Held, that the defendants could not maintain a cross-petition enjoining the plaintiffs in the court of common pleas from prosecuting another suit in the same court for any reasons or grounds which might have

been set up as a defense to the appropriation proceedings. 2. APPROPRIATION OF PROPERTY BY A MUNICIPAL CORPORATION FOR PARK PURPOSES. Where a municipal corporation has commenced appropriation proceedings of

land for park purposes, which proceedings are instituted under the provisions of section 2232 as amended, (91 O. L., 213,) relating to the appropriation of land, in such case: Held, that it is not necessary for the clerk of the corporation to file, before appropriation proceedings are commenced, a certificate showing that the money required to be paid out for the appropriation of the land in question was then in the treasury to the credit of a fund for that

purpose. KING, J.

The case of the Village of Put-in-Bay v. Thos. E. Webb et al., in a case appealed from the court of cominon pleas and was brought by the plaintiffs to enjoin the defendants from cutting trees on certain lands. It is alleged in the petition that the plaintiff had then commenced proceedings in the common pleas court to appropriate these lands under a statute which it is claimed gave them that power. The defendant answered and denied the allegations of the petition except in so far as it stated that the trees were old and decayed and that it was necessary to cut them for the protection of people who went through and among them. And also set up what it termed a cross-petition and asked for a counter injunction enjoining the plaintiffs from prosecuting their aforesaid appropriation proceeding. We passed upon some of the claims made in that crosspetition in the error case and so far as that decision determines those questions, it is unnecessary to say anything about them now.

As to the other claims in the cross-petition, we hold they could not be maintained, the defendants could not maintain a cross-petition enjoining the parties in the court of common pleas from prosecuting another suit in the same court for any reasons or grounds which might have been set up as a defense to the appropriation proceedings.

There is but one question left. It is alleged in the cross-petition that when the appropriation proceedings were commenced, or rather when the resolution or ordinance was passed, to commence the appropriation proceedings, that there was no certificate on file-a certificate of the clerk of the corporation showing that the money required to be paid out for the appropriation of the land in question was then in the treasury to the credit of a fund for that purpose. That question has been argued. It is conceded that there was no such certificate, and, in argument, that there was no money in the treasury. The proceeding was to appropriate land for park purposes and it was instituted under the provisions of the statute relating to the appropriation of land in such cases. The section authorizing the appropriation is section 2232, as amended and found in 91 0. L., 213. The provision relating to parks is :

“10. For public parks, after a notice of not less than thirty days given in two newspapers of opposite politics, if there be such published in said village or city, or in writing ; and after the proposition to purchase and appropriate has been voted upon and approved by a majority of those voting upon the proposition; and for this purpose the right to appropriate shall not be limited to lands lying within the cor

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