Kirchner v. Myers.

to charge the jury, and in the charge given, as to the effect of the death of Myers on the amount of recovery. The case was tried before Davis v. Justice, 31 Ohio St. 359; s. c., 27 Am. Rep. 514, was decided, and hence, in view of the difficult question presented. it is not strange that court and counsel fell into error. It was held in Davis v. Justice, that in an action under the above mentioned act of 1870, for injury to means of support in consequence of intoxication which caused the death of the intoxicated person, damages resulting from the death cannot be recovered. True, the request made in this case did not contain a correct statement of the law, and the court properly refused to charge as requested. It is also true that the failure to charge a correct proposition of law, pertinent to the case, will not ordinarily afford ground of reversal, if there was no request to charge such proposition. But here the attention of the court was directed by counsel to the effect of death on the amount of the recovery, and the response was, not merely a refusal to charge as requested, but a statement to the jury that if the plaintiff was entitled to a verdict, "the amount must fully compensate her for all she has lost in her means of support, both present and future ;" and no other allusion was made to the effect of death on the amount of the recovery. The jury were authorized, under such a charge, to take into consideration support he might have rendered if death had not resulted in the way stated, which, as we have seen, is opposed to Davis v. Justice; and hence the charge was not merely misleading, but under the circumstances,

erroneous.

As already stated, the question involved in Davis v. Justice was not free from difficulty. Cases may be found in seeming opposition to that decison. Rafferty v. Buckman, 46 Iowa, 195; Jackson v. Brookins, 5 Hun, 530; Quain v. Russell, 8 id. 319; Schroeder v. Crawford, 94 Ill. 357; s. c., 34 Am. Rep. 236. On the other hand, it is not without support. Krach v. Heilman, 53 Ind. 517; Collier v. Early, 54 id. 559; Backes v. Dant,55 id. 181; Shugart v. Egan,83 Ill. 56; s. c., 25 Am. Rep. 359; Brookmire v. Monaghan, 15 Hun, 16, following Hayes v. Phelan, 4 id. 733; 5 id. 335. But independently of such support, we are satisfied with Davis v. Justice for the reasons stated in the opinion of MCILVAINE, J., concurred in by a majority of the court; and we adhere to that decision.

In the case of Davis v. Justice, it appeared that the plaintiff's husband was run over by a train of cars while intoxicated, and

Fireman's Insurance Company of Dayton v. Holt.

instantly killed. In this case, the evidence tended to show that the intoxication led to exposure, which, together with the enfeebled condition of the system caused by intemperance, induced pneumonia, which occasioned death. To such a case, and perhaps indeed to Davis v. Justice, the principal reason given for the judgment in Krach v. Heilman, supra, where the facts were analogous in this respect to the case under consideration, would also seem to be applicable. There the right to recover, which was based on a statute in terms like our act of 1870, was denied by the application of the maxim, causa proxima non remota spectatur. To the same effect is Shugart v. Egan, supra.

Judgment reversed, and cause remanded for a new trial. BOYNTON, J., dissented from the second proposition.

NOTE BY THE REPORTER. -See contra, Roose v. Perkins, 9 Neb. 304; s. c., 31 Am. Rep. 409In Barrett v. Dolan, Massachusetts Supreme Court, January, 1881, it was held that as in that Commonwealth there is no right of action by any person for damages occasioned by the death of another, so the statute providing for a recovery by the husband, wife, child, parent, guardian, employer or other person who shall be injured, of damages for injuries caused by the use of intoxicating liquors, cannot be considered to give the right by impli cation to recover for the death of a party through said cause.

FIREMAN'S INSURANCE COMPANY OF DAYTON V. HOLT.

(35 Ohio St. 189.)

Insurance-condition against subsequent·

- subsequent voidable insurance.

A condition in a fire policy against subsequent insurance is not broken by the taking of a subsequent policy valid on its face, but voidable for breach of condition, although such subsequent policy was paid.*

A

CTION on a fire policy by Holt, receiver of the Washington Woolen Mills Company. The policy was conditioned to be void in case of subsequent insurance not notified and indorsed. The defense was breach of this condition. After the destruction of the property the companies that had issued the subsequent policies compromised with the insured, and paid a part of the amounts insured by them respectively, which was accepted in satisfaction of

*Contra, Allen v. Merchants' Mut. Ins. Co. (30 La. Ann. 1386), 31 Am. Rep. 243. VOL. XXXV-76

Fireman's Insurance Company of Dayton v. Holt.

the whole. The plaintiff had judgment below. The opinion states other facts.

R. & E. T. Waite, for plaintiff in error.

Osborn & Swayne, for defendant in error.

GILMORE, C. J. If the subsequent policies taken out by the insured constitute breaches of the condition against further insurance contained in the policy sued on, the District Court erred in reversing the judgment of the Common Pleas, if not, there is no

error.

The insurer held the affirmative of the issue made by the pleadings on this point, and as it was insisting that the insured had forfeited all rights under its policy by the breach of a condition inserted therein for its own benefit, it was bound to strictly prove that the condition had been broken. The evidence upon which it relied for this purpose consisted of the several subsequent policies procured from other companies by the insured on the same property, without the knowledge or consent of the defendant below.

By conditions contained therein each of these subsequent policies requires that, "if the interest in the property be other than the entire, unconditional and sole ownership of the property for the use and benefit of the insured, it must be so represented to the company, and expressed in the written part of the policy, otherwise the policy shall be void." The bill of exceptions shows that prior to the issuing of the subsequent policies the insured conveyed the property covered by all the policies by a deed absolute on its face to one Amos Babcock. In each of the subsequent policies the insured is described in the written part thereof as the owner of the property without qualification. The record does not show that the insurers issuing the subsequent policies had any notice or intimation that this description of ownership was false. Under these circumstances, as between the parties to them, neither of these subsequent policies ever took effect; they were void ab initio. Mutual Assurance Society v. Holt, 29 Grat. 612.

Counsel for plaintiff in error admit that this may be true as regards a policy void upon the face of it, and possibly as to one that has been actually and legally avoided, but claim that it is not true as regards one that has not been avoided, and can only be

Fireman's Insurance Company of Dayton v. Holt.

after a reference to extrinsic facts. They ask: Who is to determine whether such a policy can be avoided or not? The answer is, that if a policy is voidable on its face at the election of the party issuing it, such party alone can elect to avoid it, and until the election is made the policy would be regarded as obligatory upon the parties to it; and the same rule would apply if the fact that the policy was voidable was made to appear by admissible extrinsic facts. But the doctrine applicable to voidable policies has no place here. Each of the subsequent policies in question is valid upon its face, and prima facie binding on the parties to it. And by the terms of the condition upon which its character in this respect depends it must be either valid or void as between the parties, and it can occupy no middle ground.

Having already said that the subsequent policies never took effect between the parties, by reason of the breach of the conditions therein contained, we hold that the condition against further insurance in the policy sued on was not broken by such subsequent policies. The condition contemplates subsequent valid insurance, and is not broken by an attempt to obtain further insurance, which was in legal effect all that was done by the insured in this case.

But notwithstanding this is so, counsel for plaintiff in error further claim that the compromise and settlement made by the Woolen Mills Company with the companies making the subsequent insurance estops the plaintiff below from setting up or claiming,' as against the defendant below, that the subsequent insurance is void, and did not constitute such other insurance as entitled the defendant to notice thereof. There are authorities which are entitled to very great respect, that sustain this view. Carpenter v. Providence Ins. Co., 16 Pet. 495; Bigler v. N. Y. Cent. Ins. Co., 22 N. Y. 402; Jacobs v. Eq. Ins. Co., 19 Up. Can. 250.

But supported as it is by these authorities, we cannot sanction the doctrine contended for. In the absence of fraud, which is not claimed, there are no facts shown upon which to found an estoppel. The attempt to obtain further insurance did not of itself prejudice the insurer. If it be said that the belief that it had obtained further insurance was calculated to make the agents of the company and owners of the property less anxious for its preservation, or less watchful in protecting it, and that this increased the insurer's risk, and was bad faith toward, and prejudicial to, the insurer, the answer is, that none of these things can be presumed, and there is no evi

Dye v. Scott.

dence tending to prove them. There is no principle upon which the compromise and settlement by the parties of the subsequent void policies can work an estoppel.

The fact that the subsequent insurers may have regarded their policies as valid or avoidable did not make them so; and the fact that the insured received a part or the whole of the amount insured by them, did not prejudice the defendant below nor estop the insured from proving that the subsequent policies were void. The rights of the parties, under the policy sued on, became fixed at the time the loss occurred, and could not be affected by what was subsequently done between the insured and third parties.

We hold therefore that the receipt of payment on the subsequent void policies is not matter of defense to an action on a prior policy.

This view is sustained by the weight of authority in this country. See Stacey v. Franklin Ins. Co., 2 W. & S. 506; Jackson v. Massachusetts Mut. Ins. Co., 23 Pick. 418; Philbrook v. New England Ins. Co., 37 Me. 137; Lindley v. Union Mut. Ins. Co., 65 id. 368; s. c., 20 Am. Rep. 701; Gale v. Belknap Ins. Co., 41 N. H. 170; Gee v. Cheshire Co. Mut. Fire Ins. Co., 55 id. 65; s. c., 20 Am. Rep. 171; Schenck v. Mercer Co. Ins. Co., 4 Zabr. 447; Thomas v. Builders' M. F. Ins. Co., 119 Mass, 121; s. c., 20 Am. Rep. 317; Sutherland v. Old Dominion Ins. Co., 31 Gratt. 176; Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325; s. c., 11 Am. Rep. 125; 29 Gratt. 612, supra; Knight v. Eureka Ins. Co., 26 Ohio St. 664; s. c., 20 Am. Rep. 778.

Finding no errors on the record, the judgment of the District Court is affirmed.

Judgment affirmed.

DYE V. SCOTT.

(35 Ohio St. 194.)

Negotiable instrument — evidence — of waiver of demand and notice.

As between indorser and his immediate indorsee, oral evidence is competent to prove waiver of demand and notice of non-payment at the time of indorsing in blank.*

Waiver of demand waives notice of non-payment.t

* To same effect, Taylor v. French (2 Lea. 257), 31 Am. Rep. 609.

↑ Compare Harvey v. Nelson (31 La. Ann. 434), 33 Am. Rep. 222.