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Logan Circuit Court.

2. Do the facts stated in the petition constitute a cause of action, entitling the plaintiff to the relief he asks! The facts stated, for the purposes of the demurrer, are conceded to be true. By this the defendants concede the truth of the statement that the judgment and order of the probate court, discharging the sureties on the original bond from liability, was procured by fraud. That the court was imposed upon by Sweet, who by falsehood and indirection procured the court to approve, as a valid, good-faith bond, a spurious and forged one, and, based on that fraud alone, to make the order discharging from liability the sureties on the genuine original bond. Defendants concede the fraud, as broadly as it is alleged, and also the benefits likely to inure to them if it is continued; and notwithstanding the concession, they did insist on the right to avail themselves of such benefits. They admit the fraud, and are willing to be the beneficiaries of it. It is a well recognized rule, and of universal application, that fraud vitiates all things into which it enters: that no person, a party to a transaction, can be permitted to avail himself of a benefit resulting from a fraud practiced. No enduring thing can be erected having for its base or foundation a fraud. Sooner or later the wrong must give way to the right, and the base being shattered, the superstructure must of necessity topple and fall. We might, with entire safety, we think, base our decision overruling the demurrer on these general principles, and the decision would be sustained both on reason and authority; but, we think, without invoking general principles, a proper construction of the provisions of the section of the statute, under which the fraud was practiced, necessitates the same conclusion. The rights and liabilities of a surety on an executor's or administrator's bond are fixed and determined by the provisions of the statute. The contract of such a surety is made with reference to the provisions of the statute bearing on the subject, and its provisions are as much a part of the contract as if written into it. Section 6204, Revised Statutes, among other things, provides : Any surety of an executor or administrator

may, at any time, make application to the proper probate court to be released from the bond of such executor or administrator, by filing his written request therefor with the judge of said court, and giving at least five days' notice in writing to such executor or administrator;

and if such court, upon a hearing, is of opinion there is good reason therefor, the court shall release such surety,

but such original surety shall not be released until such executor or administrator so gives bond,'' etc., etc.

A fair and reasonable rendering of the wording of the provisions of this section would be: A surety on an executor's or administrator's bond may be released from liability thereon by order of the probate court, on request and good cause appearing to the court, and the court shall order a new bond given, but the surety shall not be released until such new bond is given. It is clearly the intention of the law to hold the original bond and the surety thereon to the full measure of liability until a new bond is properly given to take its place. By a new bond is meant, not a spurious, forged bond, but a good-faith one, one sufficient in form and amount, with sureties actually, in fact, executing it, and all formulated and executed in such a way as to constitute it, in contemplation of law, a valid, lawful executor's or administrator's bond. Until such a bond is given, the requirements of the law are not complied with, and such executor or administrator has not “so given bond." An order

Reynolds v. Railway Co.

of the probate court is of no consequence, and is wholly ineffectual to release a surety from liability, unless the order is based on the fact that a new, valid, legal bond has been given. It is the giving of a proper new bond that effects the desired release; and an order of release, made before such bond is given is voidable and wholly ineffectual to accomplish a release.

In this case it is conceded that no valid new bond was given in fact; that the order of release was made in the absence of a new bond, and was in fact procured to be made by means of a fraud successfully practiced on the probate court. We regard the facts averred in the petition as amply stating a cause of action entitling the plaintiff to relief, and the demurrer is therefore overruled. Defendants must answer and put these facts in issue, else plaintiff is entitled to judgment.

William Lawrence, and Howestine, Huston & Miller, for Plaintiff.
Dow & McLaughlin, for Defendants.

COMMON CARRIERS.
(Warren Circuit Court, January Term, 1896.)

Smith, Swing and Cox, JJ.

*REYNOLDS V. P., C., C. & St. L. Ry. Co. RIGHTS OF A PASSENGER WHO HAS BEEN EJECTED FROM THE TRAIN.

Where a person purchasing a ticket from a railroad company, which toket

entitles the purchaser to be carried from one station to another on the line of its road, and the purchaser, after having inquired of the ticket agent, is told to take a certain train, which, according to the schedule of the railroad company, does not stop at his destination, and as a consequence he is ejected from the train by the conductor, such passenger has a cause of action against the railroad to recover damages as for a tort, and not merely for a breach of contract.

ERROR to the Court of Common Pleas of Hamilton county. SWING, J.

Reynolds brought his action in the court of common pleas alleging that on the 4th day of July, he purchased at South Lebanon, a station on the line of said railway company, two round trip tickets from that station to Loveland, a station on the same road-one ticket for himself, and one for his eleven-year old son. That on the following day he went to the ticket office at Loveland and inquired of the ticket agent whether a train, which was then approaching, would stop at South Lebanon, and was informed by said agent that it would, and further that it was the only train that would stop there that day. Thereupon, plaintiff boarded said train, and, when about two miles out, the conductor asked for his fare, whereupon he tendered his said tickets ; but the conductor refused to accept the same, and thereupon stopped the train and ejected the plaintiff and his son from the train. He alleged that the ejection was wrongful, and asked for damages in the sum of $1,000.

The case was tried to the court, a jury being waived, on an agreed statement of facts. In addition to the facts set out in the petition, the substance of those in the agreement were as follow:

This ause wus warned by the supreme court. Soe oplaton, 65 Q. Im

Warren Circuit Court.

The tickets purchased by plaintiff were excursion tickets, and they provided that they were good only on trains stopping at South Lebanon and Loveland. That the train plaintiff boarded on the return trip was an express train, and that it did not stop, according to the schedule, at South Lebanon; that by the rules of the company, the conductor was forbidden to stop at said station, and that the ticket agent at Loveland had no authority to stop said train at said station. That the train did not stop until it reached Morrow, a station some distance from South Lebanon, and that the conductor offered to take said tickets in payment of fare as far as South Lebanon, and demanded the difference in cash to Morrow; but plaintiff refused to pay the same, he having no money, and thereupon the conductor stopped the train about two miles from Loveland, and put the plaintiff and his son off. The place where they were put off was on an embankment in a cornfield, and plaintiff was compelled to walk from there to South Lebanon, a distance of about six miles. Whether the plaintiff inquired of the ticket agent was not agreed upon, but it was agreed that he inquired of the person who was in charge of the ticket office at Loveland, and was directed by him to take that particular train as the one stopping at South Lebanon. He made no inquiry before boarding the train of the train men as to whether the train stopped at South Lebanon, neither was he asked by them as to his destination.

The learned judge of the court of common pleas on these facts found that the plaintiff had no cause of action against the defendant, and dismissed his petition. The ground upon which said finding was made was, that the plaintiff had misconceived his remedy; that he had brought it in tort, while his right of action was for a breach of contract.

Was the court correct in this? We think not.

In the first place, as said by Judge Gholson, in the case of Baker v. Cincinnati, 11 O. s., 534, there is no magic in names, especially under our rules of pleading. Here the plaintiff set forth all the facts of the case. If the facts entitled him to a recovery, it could matter little whether he properly alleged which facts were the gist of his action.

Does he state an action? We think he does. What is it?

His tickets entitled him to ride from Loveland to South Lebanon on a train stopping at the latter place. But he got on an express train which did not stop at South Lebanon. The conductor of this train could not stop the train at this point. His orders were positive. He had no discretion. At the same time, he could not carry plaintiff on his train to any point without paying his fare or producing a ticket. With this requirement plaintiff refused to comply, therefore there was nothing left for the conductor to do but to eject the plaintiff from the train ; this he had a right to do. He did nothing but his duty, and the plaintiff cannot complain of this. Therefore, when he alleges this ejection as the gravamen of his action, he is clearly in error.

But plaintiff was rightfully on the train. He made inquiry of the person in charge of the ticket office at Loveland before taking the train as to whether it stopped at his station. In doing this, he acted as a prudent man should. He did what the company wanted and expected him to do. He inquired of the person that the company held out to him as the proper person to give such information. Therefore, he was placed upon this train, in effect, by the company itself. He was there without fault. He could not be at fault, when he obeyed the order of the com

Reynolds v. Railway Co.

pany. But somebody had made a mistake, for the train did not stop at this station. The plaintiff did not make the mistake, and the company did. The mistake resulted in an injury to the plaintiff. Why should he not recover? Clearly he should. But what does he recover for? The learned judge of the court of common pleas held that it should be for a breach of the contract. But how can this be? There was no refusal of the defendant to carry the plaintiff on trains stopping at South Lebanon, as agreed to in the contract, but there was a refusal to carry plaintiff to South Lebanon on an express train which did not stop at South Lebanon. There was no breach of contract in this; and he was put off of this train and, as we have found, rightfully. But we have found that he was wrongfully placed by the company, without fault on his part, on this train, and that he has the right to recover whatever damage may have resulted to him by reason thereof. Therefore, he has a cause of action. What is it?

Similar actions have given rise to considerable discussion as to the nature of such actions, and there has been a conflict of decisions on the question, especially in England. But under our rules of pleading, we do not regard such distinctions as of vital importance. In a recent cause decided by the supreme court of Minnesota, reported in the 50 N. W. Rep. at p. 1021, in a like case, the court, we think, correctly states the distinction and gives the correct rule.

The court there say:

“Inasmuch as the conductor did nothing but what he would have a right to do, had plaintiff had no right to ride on the ticket, it is evident that plaintiff could not have maintained the action at all without pleading and proving his contract with the defendant and its breach, either by malfeasance or nonfeasance. In other words, an action could not have been maintained for a tort simply without reference to the contract between the parties. In that sense it is an action arising on the contract. But it is not an action on the contract properly so called. The gist or gravamen of it is a tortious act which constituted a breach of the contract. It is what is sometimes called “an action for tort founded on contract, or an action ex quasi contractu." In considering the measure of damages and the elements of damage proper to be considered, the courts in this country have almost universally treated such actions as sounding in tort.

Mr. Sedgwick, in his work on Damages, section 868, remarks the practical effect of it has been virtually neutralized in most jurisdictions by holding, as already stated, that actions like the present sound in tort. But it seems to us that very often a great deal of time and learning have been unnecessarily expended in discussing the exact nature of such an action."

In our judgment, therefore, plaintiff stated and proved a cause of action ; that his action was not, strictly speaking, an action on the contract, but was an action founded upon a contract sounding in tort, and the court of common pleas erred in finding that plaintiff had not stated a cause of action which was sustained by the agreed statement of facts and in dismissing plaintiff's petition, and the cause is reversed and remanded for further proceedings.

*

Cuyaboga Circuit Court.

ACCIDENT INSURANCE.
(Cuyahoga Circuit Court, January Term, 1897.]

Caldwell, Hale and Marvin, JJ.
THE AMERICAN ACCIDENT Co. OF LOUISVILLE, Ky., v. ELIZABETH CARD,

ADMINISTRATRIX. 1. NOTICE TO AGENT NOT NOTICE TO COMPANY, WHEN.

Where an agent of an insurance company accidentally hears of the death of

the insured, such knowledge on the part of the agent is not notice to the

company such as is required by the policy. 2. FAILURE OF INSURED TO NOTIFY THE BENEFICIARIES OF THE EXISTENCE OF THE POLICY. Where a person procures a policy of insurance on his life, and fails to

make such fact known to the beneficiaries, so that immediate notice of his death could be given, such negligence on the part of the insured cannot be imputed to the administrator, and the company will not be relieved from liability on such policy in a suit brought by a representa

tive of the deceased. 3. QUESTION OF NOTICE TO BE DETERMINED BY THE JURY.

What is a sufficient compliance with the conditions of a policy of accidental

insurance requiring, immediate notice of the death of the insured is a

question of fact to be determined by the jury. 4. EXISTENCE OF POLICY NOT KNOWN BY THE BENEFICIARY, WHEN

Where the beneficiaries under a policy of accident insurance do not know

of the existence of such policy until some time after the death of the insured, when it was accidentally discovered and the company was then duly notified of the death of insured: Held, that the condition of the policy requiring immediate notice to be given had been fully complied

with. 6. ESTABLISHING THE DEATH OF THE INSURED.

In establishing the death of the insured the condition as to proof is com

plied with if affidavits were filed showing in general the manner of the death. It is not necessary to enter into every detail.

ERROR to the Court of Common Pleas of Cuyahoga county. MARVIN, J.

This case is brought to reverse the judgment of the court of common pleas.

The facts are that Osman Card had a policy of insurance in the insurance company named; that while that was in force he died on the 10th day August, 1892; that his death was occasioned by his falling out of a window of a hotel in St. Louis, Michigan.

One of the conditions of the policy issued to him was contained in the words which I will read:

“Immediate written notice of accident must be given to the company's secretary. Failure to give such notice shall invalidate all claims under this insurance. Positive proof of accidental death or loss of limb must be furnished within six months from the date of the accident."

In this case no notice was served upon the company at all until as late as the 22d of December next after the death of Mr. Card. Indeed, it reached the company later than that; it was written and mailed on that day. And it was brought about that on that day, the 22d of December, Mrs. Card, who was plaintiff below, as administratrix of the estate of her

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