Phosphate Co. v. Chemical Co.

contract which the bond purports to guarantee and with the application upon which it is based. The failure to pay in full each month would be a breach of the contract; while a payment in full would be a breach of the bond if the fourth condition remains.

There is, therefore, a strong presumption of fact that the alteration was made before final delivery. Franklin v. Baker, 48 Ohio St. 296-303 [27 N. E. Rep. 550; 29 Am. St. Rep. 547]. And this presumption of fact is corroborated and strengthened by the admission of the original answer and long delay and is not met and overcome by the proposed testimony of J. S. Mossgrove for the reason that he does not show opportunity to know of the condition of the bond when finally delivered or to know whether the general officers approved the alteration.

Upon this state of the evidence given and offered the trial court did not abuse its discretion in its refusal to permit the amendment at that stage of the case.

It is contended that the failure of the Jarecki Company to notify the Surety Company of one or more defaults of the Phosphate Company in the full performance of the contract for preceding periods operates as a complete release of the Surety Company.

This question is raised by the demurrer to the petition, by demurrer to the plaintiff's evidence, upon motion for nonsuit and upon the special and general charges of the court: The contention is based upon the first condition of the bond, viz.:

"That in the event of any default on the part of the principal, in the performance of any of the terms, covenants or conditions of said contract, written notice thereof with a verified statement of the particular facts showing such default and the date thereof, shall within ten days after such default be delivered to the Surety Company at its office in the city of Columbus, Ohio."

The view of the court of common pleas as shown by charges given and refused was, in substance, that a failure to give notice within the stipulated time of any particular default was

Franklin County.

effective as a bar to liability for that default, but in the absence of actual prejudice to the Surety Company did not relieve it from liability for future defaults for which notice is duly given.

This view is supported by the weight of authority and is in harmony with the scope and purpose of the bond.

Lakeside Land Co. v. Surety Co. 105 Minn. 213 [117 N. W. Rep. 431]; United States F. & G. Co. v. United States, 191 U. S. 416 [24 Sup. Ct. Rep. 142; 48 L. Ed. 242]; United States v. Fidelity & Guaranty Co. 178 Fed. Rep. 721; Lazelle v. Surety Co. 58 Wash. 589 [109 Pac. Rep. 195]; Van Buren Co. v. Surety Co. 137 Ia. 490 [115 N. W. Rep. 24; 126 Am. St. Rep. 290]; Aetna Indemnity Co. v. Waters, 110 Md. 673 [13 Atl. Rep. 712]; Henry v. Indemnity Co. 36 Wash. 553 [79 Pac. Rep. 42].

To hold as contended for here that notice is required for every trifling or inconsequential departure from the strict terms of the contract guaranteed and that a failure to give such notice is a bar to all further liability upon the bond is too narrow and would amount to a practical destruction of the objects and purposes of the bond.

Counsel for plaintiff in error cite Home Ins. Co. v. Lindsey, 26 Ohio St. 348, but a careful examination of that case discloses that the holding of the court as to want of notice applied to an existing loss-not future losses. The case might be made parallel if we assume that an insured had one or more fires in the insured building of triffing results and then a complete loss. It would be unreasonable and absurd to hold in the case assumed that a mere failure to report the small fires would be a complete bar to recovery for the complete loss upon its being properly reported.

The same conclusions must also prevail as to slight deviations by request or order of the Jarecki Company as to amount and time of delivery during previous months where in no wise affecting the contract for the period of alleged liability.

We find no prejudicial error in admitting evidence of market values of phosphate rock at other nearby points to be

Phosphate Co. v. Chemical Co.

considered in the absence of a market value at the stipulated place of delivery, nor in the charge of the court in respect thereto.

We find no prejudicial error in the charges given or special charges refused in respect to a complete breach of the contract. The failure of the Phosphate Company to answer the letter of February 8, or to make any effort to comply with the contract up to the bringing of the suit and in view of the needs of the Jarecki Company and of their proceedings to buy supplies is sufficient evidence of repudiation of the whole contract to uphold the verdict.

Some of the special charges requested by the plaintiff in error might be considered good as general statements of the law but were not sufficiently concrete or specific to meet the present case.

The subjects of the special charges were properly covered. by the general charge.

We have examined the other exceptions complained of and find no prejudicial error in the record.

Affirmed.

Dustin and Rockel, JJ., concur.

MASTER AND SERVANT-STREET RAILWAYS.

[Hamilton (1st) Circuit Court, December, 1909.]

Giffen, Smith and Swing, JJ.

CINCINNATI, GEORGETOWN & PORTSMOUTH RY. V. GEORGE W.

MARTIN.

PRESIDENT OF TRACTION COMPANY'S VERBAL ORDER TO MOTORMAN, TRANSMITTED THROUGH STATION AGENT DOES NOT CONSTITUTE LATTER SUPERIOR OF MOTORMAN.

A station agent, transmitting a verbal order of the president of a traction company, directing a motorman to assist in loading a heavy axle on his car, is not invested thereby with authority and control over such motorman, nor does it make the company liable for injuries sustained by the motorman and caused by the negligence of such agent while assisting as a volunteer in carrying out such order.

Frank Dinsmore, for plaintiff in error.

S. O. Bayless and John D. DeWitt, for defendant in error. The defendant in error, a motorman on the C., G. & P. line, sustained injuries for which he was awarded a judgment below of $1,000.

GIFFEN, P. J.

Negligence is charged in the petition as follows:

"A few minutes before the schedule time for the leaving of said station of the car of which the plaintiff was in charge as motorman the agent of said defendant in charge of said station and having in charge the business of said company, ordered and directed plaintiff to assist in loading upon his said passenger car a heavy iron or steel bar or axle about four or five inches in diameter and seven or eight feet long and weighing five hundred pounds; that the plaintiff objected and protested against the loading of said iron bar upon the said passenger car, and demanded to know upon whose orders they were required to load said iron bar upon said car, and was informed by the said agent that Mr. Comstock, the president of said company, had ordered said agent to have the said iron bar placed upon said car by the motorman and other employes of said car; that in pursuance of the order and directions of the president of said. railroad company, the plaintiff left his car for the purpose of assisting the said station agent and other employes of defendant to load said iron bar and freight upon said car, as directed by the president of the defendant company; that said bar of iron and freight was at the time loaded upon a two wheel truck on the platform or grounds of said station, near the said car upon which the same was intended to be loaded; that said station agent, at the time had hold of the handles of said truck waiting the assistance of the plaintiff; that while this plaintiff was stooping to take hold of said freight or bar of iron, to place it upon said car, the said agent negligently and carelessly lifted the handles of said truck, or negligently permitted the said truck to be tipped forward over and against this plaintiff," etc.

The first defense of the answer, excepting certain formal ad

Railway v. Martin.

missions, is a general denial. The second defense is that the station agent was a fellow-servant of plaintiff. By amendment to the answer defendant pleads contributory negligence.

The plaintiff by reply avers,

"That when plaintiff's car was at said station, or within the jurisdiction of said station, the said plaintiff as such motorman was subject to the orders, control and direction of said station agent and his assistant and especially so when the said station agent or his assistant was endeavoring to have carried out and executed special and specific orders of the superior and executive officers of the defendant company. Plaintiff further

denies that it was his duty to assist the agent, or the assistant agent, in loading the particular shafting or axle at the time referred to, and avers that what he then did was done under the express orders of said agent, or assistant, which orders emanated from one of the chief or executive officers of defendant.”

The pleader in stating the cause of action lays stress upon the imperative order of the president to the plaintiff to undertake apparently dangerous work, without furnishing adequate protection; but there was nothing inherently dangerous in the iron axle except its weight; no defect in the truck, and no directions given as to the manner of doing the work.

The chief question in the case is whether the station agent was vested with authority and control over the plaintiff.

It will be observed from the petition that the plaintiff not only denied, but resisted, the authority of the station agent in this particular matter, until he was told that the order came from the president of the company, and that he attempted to do the work because of that order.

If the general authority and control of the station agent over the plaintiff, as shown by the rules and practice of the company, did not extend to this transaction, then there could be no other source except the special order of the president. This order was addressed directly to the motorman and other employes of the car, although delivered by the station agent. It contained no directions to such agent to take part in the work or to suggest the means of doing it.

The natural inference is that the president assumed the em