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Bycralt v. Rai.way Co.

Upon these questions the burden of proof is upon the plaintiff, and this makes it incumbent upon him to produce a preponderance of the testimony in support of the propositions mentioned, and unless he has produced it he would not be entitled to recover. If he has produced it then he is entitled to your verdict.

As to the extent of the injuries, the burden of proof is also upon the plaintiff, and this also makes it incumbent upon him to produce a preponderance of the evidence as to the injuries sustained, and the extent thereof, as well as the same being the direct and proximate result of the negligence of the defendant.

In order to determine these questions you should carefully consider all of the testimony which is presented here in connection with the admissions to which your attention has been called, as well as the admissions which have been made in open court during the progress of the trial of this case in regard to any of the matters which are in controversy.

Having considered it all, ascertain the facts that are established by this testimony by a preponderance of the evidence produced, and anal.. ing to these facts the rules here given in charge, you will report the conclusion at which you have arrived by the verdict which you may render.

If your verdict is for the defendant, say so in general terms. If for the plaintiff, you should so state, and also incorporate in your verdict the amount which you may find he is entitled to recover, an amount that would be sufficient to compensate him for the damages actually sustained by him, directly resulting from the negligence of the defendant. This would include the pain which the plaintiff has suffered, and the pain that he will continue to suffer if his injuries are of such a character as to cause him pain in the future. His diminished capacity to earn money from the time he received his injuries until the present, and his diminished capacity to earn money in the future, if you find his injuries are of such a character as to diminish lis capacity to earn money in the future. And you may also include any expense actually and necessarily incurred by him in consequence of the injuries received which have been proven in this case. He is entitled, if entitled to recover at all, to be made whole ; more than that would be unjust to the defendant; less would be unjust to the plaintiff.

The defendant excepts to the refusal of the court to charge any of the written propositions submitted to the court before argument of the case, being propositions numbered from one to seven, inclusive.

The defendant also excepts to the following portion of the charge as given: “I say to you as a matter of law, that if you find that plaintiff was injured by reason of the negligence and want of care on the part of the conductor of train No. 37, and you also find that the plaintiff, at the time he received his injury, was upon that train with the consent, permission and knowledge of the defendant, and with the consent, permis

Mahoning Common Pleas.

sion and knowledge of the conductor of this train No. 37, but at that time, he was in the discharge of no duty incident to his employment and was not engaged in discharging any of his duties as a conductor upon that road, or any duty upon that train, and was merely riding from Andover to his home at Ashtabula, with this consent, knowledge and permission on the part of the defendant and of the conductor, that the negligence of the conductor, in charge of train No. 37, would be the negligence of the defendant and would not be the negligence of a coemployee or fellow-servant, so as to defeat a recovery in this action, provided you find the plaintiff otherwise entitled to recover."

The defendant also excepts 'to the following part of the charge: "If you have found the plaintiff to have been thus upon this train then it became and was the duty of the defendant to exercise towards him ordinary care in the running and operating of that train, and this would be the degree of care and the degree only which was incumbent upon the defendant by reason of the relation which existed from the situation of the parties and the relation they sustained toward each other at that time. If the defendant failed and neglected to exercise that degree of care towards the plaintiff, and for his safety, for such failure the defendant would be liable, provided the plaintiff was in the exercise of proper care on his own part, and if this conductor of train 37 failed and neglected to exercise towards the plaintiff that degree of care, and by reason of this failure the plaintiff was injured, the defendant woull be liable therefor.”

The defendant also excepts to the following portion of the charge: “If you have found that the defendant was negligent in running and operating train No. 37, and find that it did not exercise towards the plaintiff ordinary care for his safety, and that, by reason of such failure, and as a direct and proximate result thereof, the plaintiff sustained his injuries, and have also found that at the time he received his injury he was upon this train, with the knowledge, permission and consent of the defendant and said conductor, but was discharging none of the duties incident to his employment at that time, and discharging no duty required of him by the defendant on that train or otherwise, and was in the exercise of ordinary care himself, then the plaintiff would be entitled to recover, even though you may find at that time the relation of master and employee existed between the defendant and the plaintiff.”

The defendant also excepts to the following portion of the charge: And you may also include any expense actually and necessarily incurred by him in consequence of the injuries received, which have been proven in this case."

The defendant also excepts to the refusal of the court to charge or instruct the jury in any respect as to the relation that existed between plaintiff and other servants of the defendant company in charge of the trains which collided.

Byer ft v Railway Co.

Thereupon, after verdict for the plaintiff, and within three days, and before judgment, the defendant duly filed its motion for a new trial, which came on for hearing on the roth day of February, 1894, was on that day heard, and was overruled by the court, and judgment entered on the verdict of the jury, to which defendant duly excepted.

FIRE INSURANCE
[Fayette Common Pleas, March Term, 1891.]
*Dun & Co. v. GERMANIA FIRE INSURANCE Co.

1. ACTION BY PARTNERSHIP ON POLICY-PROOF REQUIRED.

In an action by a partnership to recover insurance the burden is on the

plaintiff to prove, that it is a partnership doing business in Ohio; that at the time of the loss and also when the policy was given the property belonged to the partnership; that the same was injured or destroyed by fire as claimed, and the amount of loss or injury; that plaintiff performed all the conditions of said policy, or that the defendant waived such as

were not performed by plaintiff sixty days before bringing suit. 2. DISSOLUTION OF FIRM MAY BE EXPRESS OR IMPLIED.

A partnership at will may be dissolved by agreement of partners, and it is

immaterial whether it be done by an express agreement, or by acts and conduct of its members, or one of them, showing an intention, with acts

carrying it into effect, to terminate the relation. 3. Facts NOT OPERATING AS DISSOLUTION OF FIRM.

The fact that one member of a firm, organized for the purpose of carrying

on a banking business, purchased in good faith goods for the firm in consideration for and ir satisfaction of a judgment held by the firm against the owner thereof, without consulting with the other member or getting his consent thereto, and kept the store, containing these goods as a stock, open as a going concern, and sold goods from time to time,

will not operate as a defense of dissolution of the Arm. 4. REMOVAL OF PARTNER FROM STATE NOT DISSOLUTION.

The fact that one member of a firm went out of the state to live and gave

no further personal attention to the firm business, but left it to the resi.

dent partner, does not in itself work a dissolution thereof. 5. SUFFICIENT NOTICE OF Loss.

A notice of loss under a policy of insurance immediately after a fire, or as

soon as it can be done with reasonable diligence, to the agent of the company at the place where the fire occurred, or with such diligence causing notice of the loss to be brought to the knowledge of the company, is a sufficient compliance with the condition requiring notice of loss to be

given to the company.

*The judgment in this case was affirmed, with order of remittitur of excess over $4,200, by the circuit court, November term, 1891, and by the Supreme Court without repori, 52 Ohio St., 639.

*In the Supreme Court, Craighead & Craighead, and Mills Gardiner, for plaintiff in error, cited: Mehurin v. Stone, 37 Ohio St., 50; Home Ins. Co. v. Lindsley, 26 Ohio St., 348; Hallis v. Insurance Co., 65 Iowa, 454; Barre v. In. surance Co., 76 Iowa, 299; Thompson v. Insurance Co., 136 Ú. S. R., 299; Weed y. Insurance Co., 116 N. Y., 116, 111; Lohnes v. Insurance Co., 121 Mass., 439; Bush v. Westchester Co., 63 N. Y., 531; Bowlin v. Hekla Fire Ins. Co., 36 Minn.; Harkiss v. Rockford Ins. Co., 70 Wis., 1; Walsh v. Hartford Fire Ins. Co., 73 N. Y., 5; Youngstown v. Moore, 30 Ohio St., 133; Insurance Co. v. Sorsby, 60 Miss., 302; Weed v. Insurance Co., 116 N. Y., 116, 117; Barre v. Insurance Co., 76 Iowa, 609; Van Allen v. Insurance Co., 64 N. Y., 469; Merseran v. Insurance Co., 66 N. Y., 274; Wood on Insurance, Sec. 397, p. 655; May on Insurance, Sec. 138, A,

Fay: t'e Commo · Peas.

6. PROOFS OF Loss—WAIVER BY ACTS.

An insurance company must not, by its acts or the acts of its authorized

agents, within the scope of their duties and authority, do anything to throw the insured off of his guard, and cause him to believe, as any reasonable man under similar circumstances would believe, that proofs of loss are not wanted by the company or they will be held to have waived

such proofs. 7. ACTS OF ADJUSTER BIND THE COMPANY.

An adjuster, employed by an insurance company to act for it in settling a

loss, is the agent of the company and all that he does within the scope

and line of his employment and duties binds the company. 8. PROOFS OF LOSS MAY BE WAIVED.

The requirement of preliminary proofs of loss is a formal condition, in

serted in the policy of insurance solely for the benefit of the insurer, and it may waive such proofs in whole or in part, either by direct action of the insurer, or his general agent by virtue of his authority and such

waiver may be express or implied. 9. Acts WHICH DO NOT CONSTITUTE WAIVER.

Mere silence on the part of an insurance company, or sending agents to

make inquiry or investigation into the matter of the loss, or an attempt

to compromise, do not amount to a waiver of proofs of loss. 10. ACTS AMOUNTING TO WAIVEP.

If an insurance company, by its adjuster, proceeds to investigate a loss on

its merits, and by what it does causes the insured to believe, and a man of ordinary judgment under the circumstances would have so believed, that it was only the amount of loss in dispute, and nothing else, that will

amount to a waiver of proofs of loss. 11. DENIAL OF ALL LIABILITY A WAIVER.

A denial of all liability, on the ground that the loss is not within the policy,

or that the policy is void, is a waiver of the clause requiring proofs of loss. 12. EVIDENCE BEARING ON WAIVER.

Where an insurance company sent its adjuster to the place of loss to in.

vestigate it, and he assisted in selecting two appraisers to estimate the loss, and the appraisers made a report thereof, and the adjuster and assured agreed as to the loss on other property under the policy, may be

considered in determining whether or not proofs of loss were waived. 13. COMPANY CANNOT RECALL WAIVER OF PROOFS.

An insurance company cannot recall, or reclaim a waiver of proofs of logs

and demand or insist upon such proofs.

Vol. 1; James v. Stockey, 1 Wash., 330, 331; May on Insurance, Vol. 1, Sec. 137; A; May on Insurance, Sec. 126. Vol. 1; Greene v. Insurance Co., 91 Pa., 387; Clevinger v. Insurance Co., 9 Ius. Law Jour., 129; Allen v. Ogden, 1 Wash., 174178; Marvin v. Insurance Co., 85 N. Y., 278; Quinlan v. Insurance Co., 133 N. Y., 366; Walsh v. Insurance Co., 73 N. Y., 5; Cleaver v. Insurance Co., 65 Mich., 527; Hawkins v. Insurance Co., 70 Wis., 1; Greenleaf on Evidence, 114, p. 158; Francis v. Edwards, 77 N. C, 271; Golbroath v. Cole, 61 Ala., 139; Central Branch N. P. R. R. v. Bertman, 22 Kan., 639: Henkle v. McClure, 32 Ohio St. 202; Mehurin v. Store, 37 Ohio St., 49; Home Ins. Co. v. Lindsey, 26 Ohio St., 348; Toland v. Lutz, 1 Circ. Dec., 584; Judge v. Brasswell, 13 Bush., 67; Toof v. Duncan, 45 Miss., 48; Gray v. Ward, 18 Ill., 32; Bliss, Life Ins., Sec. 355-8; Woods, Ins., p. 728; Ins. Co. v. Parisot, 35 Ohio St., 10; Aetna Ins. Co. v. Reed, 33 Ohio St., 283; Farmers Ins. Co. v. Frick, 29 Ohio St., 466; Bliss on Life Ins., 267, p. 446; Bryan v. Rock Island Co., 63 Iowa, 464; Fitzgerald v. McCarty, 55 Iowa, 702; Porter v. Knight, 63 Iowa, 365; Sterling Wrench Co. v. Amstutz, 50 Ohio St., 489; Ford v. Osborn, 45 Ohio St., 3.

*Hidy & Patton, for defendant in error, cited: Wood on Insurance, p. 753, Sec. 432; Petingill v. Hanks, 9 Gray, 169; Dyer v. Insurance Co., 54 Me., 457; Rev. Stat., Sec. 4987; 7 Am. and Eng. Ency. Law, 1020; Clark v. Insurance Co., 7 Mo. App., 77; Wood on Insurance, p. 168, Sec. 86; Wood on Insurance, p. 398,

Duu & Co. v Insur nce Co.

14. DAMAGES FIXED BY APPRAISERS ARE CONCI.USIVE,

The damages fixed by appraisers and returned in their award are conclusive

and cannot be opened up upon submission to a jury in an action for loss

upon a fire policy. 15. APPRAISEMENT-DEMAND FOK.

A letter from an insurance company to assured, upon receipt of notice of

loss, demanding a compliance with the conditions of the policy in regard to notice of loss, the amount, etc., and reciting that “in case differences shall arise” touching such loss, the matter shall be submitted to apprais

ers, does not amount to a demand for appraisement. 16. WAIVER OF PROOF DOES NOT MAKE CLAJM DUE AT ONCE.

An insurance company is entitled to the sixty days limitation on bringing

suits for loss upon a policy of insurance, to investigate the claim, and waiver of proof of loss does not make the claim due at once unless the

company notifies assured that it will not pay in any event. 17. SIXTY DAYS LIMITATION-SUIT WITHIN FAILS.

If an insured brings suit within sixty days of presenting notice and proofs

of loss he must fail unless the company deny liability on the policy, when an action may be commenced without waiting such time.

AMENDED PETITION.

The plaintiff is a partnership formed for the purpose of doing business in the state of Ohio, and are engaged in business at Sabina, Ohio.

The defendant is a corporation duly organized under the laws of the state of New York, and on January 23, 1889, had performed all the conditions and requirements of the laws of Ohio in that regard, and was on said day, and still is, duly authorized to insure against loss or damage by fire in the state of Ohio. On January 23, 1889, at the city of Washington, Fayette county, Ohio, the plaintiff being the owner of the following described property, to-wit: A stock of drugs, medicines, oils, paints, glassware, dye-stuffs, fancy goods, liquors, and cigars, tobacco, stationery and notions, toys, pictures and their frames, guns, hunters' outfits and shells, barroom furniture and fixtures, consisting chiefly of side-board, mirror, counter and cooler; also, store furniture and fixtures, consisting chiefly of show-cases, iron safe, counters, tables, mirrors, prescription case, shelf bottles and case, soda fountain and fixtures, and all contained in the first story and basement of a two story brick building, occupied by said plaintiff as a wholesale and retail drug store, situate on the west corner of Court and Main streets, in Washington C. H., Ohio, in consideration of the premium of fifty dollars paid, defendant, by its policy

Sec. 202; Wood on Insurance, p. 715, Sec. 417; Wood on Insurance, p. 724, Sec. 419; Wood on Insurance, Secs. 420 and 421; Westlake v. Insurance Co., 14 Barb., 206; Insurance Co. v. Harmer, 2 Ohio St., 476; O'Niel v. Insurance Co., 3 Conn., 122; Tyler v. Insurance Co., 9 How., 390; Francis v. Insurance Co., 6 Cow., 404; Insurance Co. v. Tyler, 16 Wend., 402; Insurance Co. v. Boyle, 231 Ohio St., 131; Underhill v. Insurance Co., 6 Cush., 440; Clark v. Insurance Co., 6 Cush., 342; Heath v. Insurance Co., 1 Cush., 257; Blake v. Insurance Co., 12 Gray, 265; Norwich Trans. Co., v. Insurance Co., 34. Conn., 561; Graves y. Insurance Co., 12 Allen, 391; Insurance Co. v. Parisot, 35 Ohio St., 35-41; Cobb v. Insurance Co., 11 Kan., 93; ? Am. and Eng. Ency. Law, 1056; Insurance Co. v. Pitts Exposition Society, 11 Atl. Rep., 572.

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