MATTHEWS v. AMERICAN INSURANCE CO. INSURANCE-PREMIUM-DEFAULT AND REVIVOR OF POLICY. (Ohio Supreme Court Commission. May 29, 1883.) A fire insurance policy for five years required the insured to pay $16 cash, and give a note, payable, according to the terms of the policy, in equal installments, annually, for four years without interest; and stipulated that if any installment should not be paid within thirty days after due, the policy should be null and void until payment by the assured of the installment; but such revivor should not make the insurer liable for any loss occurring during the default. Held: While the policy was so null and void, no premium was earned by the insurer, and the insured is entitled to a credit on the note for the aggregate of such unearned premium. Error to Lorain Common Pleas, reserved by the district court. Martin Matthews made a written application to the American Insurance Company for insurance on his property, for the term of five years from the first day of December, 1873, stipulating "if any installment upon the premium shall remain due and unpaid thirty days, then the policy issued upon the application, in consideration of such installment, shall be null and void until the same is paid." A policy, making said application a part of itself, was issued to him; he paid $16 cash premium and gave a note, promising to pay to the company $16 on the first day of December, 1874, and a like sum on said day in each of the three years next, following. The policy provided for default in payment of any installment thus: "This company shall not be liable * * * *** if default shall have been made by the assured in the payment of any installment of premium due upon the installment note aforesaid, of the assured (or in case of the assignment of the policy, upon the installment note of the assignee,) for the space of thirty days after such installment shall become due by the terms of such note; provided, however, that on the payment by the assured or assigns, of all installments of premium due under this policy and the installment note given thereon, the liability of this company on this policy, shall again attach, and this policy be in force from and after such payment, unless this policy shall be void or inoperative from some other cause. But this company shall not be liable for any loss happening during the continuance of such default of payment. * * * "The application and description referred to in this policy, shall be considered part of this contract. * * * "If the cash premium shall be unpaid, then and in every such case, this policy shall be void, and the assured shall not be entitled to recover from the company any loss or damage which may occur to the properey hereby insured, or any part or portion thereof. When a promissory note is given by the assured, for the cash premium, it shall be considered a payment, provided such note is paid at or before maturity; but it is expressly understood and agreed, by and between the parties hereto, that should any loss sured, and the note given for the cash premium or or damage occur to the property hereby inany part thereof, remain unpaid and past due at the time of such loss or damage, then this policy shall be void. It is further provided that no attempt by law or otherwise, to collect any note given for the cash premium, or any installment of premium due upon any installment note, shall be deemed a waiver of any of the conditions of this policy, or shall be deemed in any manner to revive this policy; but upon the payment by the assured or his assigns, of the full amount due upon such note, and cost if any there be, this policy shall thereafter be in full force, unless the same be inoperative or void from some other cause than the non-paynent of such | note." The final clause of the policy read thus: "This policy is made and accepted upon the above express conditions, and the charter of this company, which is to be resorted to and used to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for, and which is hereby made part of this policy." Matthews paid the $16 due December 1, 1874, but made no other payment. About September 5, 1878, the company began suit before a justice of the peace, claiming $48 and interest. After judgment the case was appealed, and the company recovered a judgment in the common pleas, on June 13, 1879, for $50.09. A motion for a new trial was overruled, exception noted, a bill of exceptions taken and a petition in error filed in the district court, where the case was reserved for decision here. GRANGER, C. J. In the absence of an express agreement to the contrary, whenever the insurance ceases in favor of the company, the premiun ceases to accrue against the insured. Tyrie v. Fletcher, Cowp. 668; May on Ins., section 4; Am Ins. Co. v. Stoy, 41 Mich. 394. Here the company claims that such an agreement existed, by reason of the reference to the charter and its incorporation into the contract. But the charter was to be "used to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for." The policy itself specially provided for the case of a default in the payment of any installment of the premium note, giv ing full effect to the stipulation set out in the application. Taking policy and application together they told Matthews, that, if he should fail to pay an installment when due, or within thirty days thereafter, the policy would be void, subject to revivor by payment -the company to be free from liability for any loss occurring during the interval of default. To add thereto an additional penalty: to require full payment of premium for years in which the company was free from liability, would provide "otherwise" than as stated in the policy. A majority of the court are of opinion that so much of the charter as makes the whole note due in case of a default in the payment of one installment did not form a part of the contract in this case. The Supreme Court of Michigan in American Ins. Co. v. Stoy, 41 Mich. 395, thus construed a similar policy, holding that the charter was "made a part of the policy for the purpose of explaining such rights and obligations of the parties as are not otherwise provided for by the terms of their agreement," and that the application and policy fully and specially provided for the case of a default in the payment of an installment of premium, and the charter could neither enlarge, vary nor change the written obligation. The stipulations of the application and policy made the policy null and void during the whole period of default. No provision was made for a revivor save by the act of payment by the insured. Unless he should by his act restore its vitality, it was to remain void. The premium note was part of the contract made by the policy, and was additional evidence of what the insured agreed to pay in consideration of the promises of the company. So soon as the policy became void the premium ceased to accrue, and the company lost the right to recover the unearned installments of the premium note. The policy constituted the contract between the parties. The application and note were parts of it. To make the policy void was to leave no contract in existence between them. To make it void until Matthews should pay the installments in default, was to leave no contract between them except the stipulation that he, by payment, might restore the contract. This suit was begun while the policy was in this state of suspended animation. A majority of the court are of opinion that the insured was entitled to a credit on his note for the aggregate unearned premium, to wit: So much of the premium originally contracted for as covered the time during which the policy was null and void. The judgment of the court of common pleas is reversed. DICKMAN and MARTIN, J. J. dissented. [To appear in 40 Ohio St.] Columbus, Ohio, June 5, 1883. GENERAL DOCKET DECISIONS. No. 125. Kennedy v. Kelly. Error to the District Court of Auglaize County. Judgment affirmed. Reported. 191. Dingman v. Dingman. Error to the District Court of Shelby County. Judgment affirmed. Reported. 193. Nutter v. McKinney. Error to the District Court of Licking County. Judgment affirmed without penalty. No report. 197. Wild v. Commissioners of Montgomery County. Error to District Court of that county. Affirmed on authority of Greenwood v. Commissioners, 23 Ohio St. 600. No further report. 213. Eckstein, Hills & Co. v. Commissioners of Hamilton County. Error to the District Court of that county. Judgment affirmed. No report. 290. Eagle White Lead Company v. same. Judgment affirmed. No report. 383. Ashwood v. Ganson. Error to the District Court of Cuyahoga County. Dismissed by agreement of parties. 288. Brock et al. v. Becker. Error to the District Court of Hamilton County. Settled as per stipulation on file. 839. Mace v. Harness. Error to the District Court of Ross County. Settled by the parties as per agreement on file and dismissed. MOTION DOCKET DECISIONS. 95. Barber v. Hite et al. Motion granted. Judgment reversed and cause remanded. 100. Egler v. Egler. Motion for leave to file petition in error to District Court of Defiance County. Overruled. 106. C., C., C., & I R'y Co. v. Paramore. Motion to reinstate cause on general docket and for revivor. Granted. 108. Todhunter v. Stewart. Motion for leave to file petition in error to the District Court of Butler County. Overruled. Reported. 120. Ehrbar v. Pelton. Motion for leave to file petition in error to the District Court of Cuyahoga County. Overruled. 121. Libby v. Watterson. Motion for leave to file County. Overruled. petition in error to the District Courf of Cuyahoga 122. Baker v. Kinsey. Motion for stay of proceedings, etc. Granted. Defendant enjoined from proceeding to trial in common pleas until final judgment herein. 123. Plock v. C. H. & D. Railroad Company. Motion to reinstate No. 430 on General Docket. Granted. 124. Ullery v. Webb. Motion to reinstate No. 962. Overruled. 125. P., C. & St. L. R'y Co. v. Zimmerman. Motion for leave to file petition in error to District Court of Darke County. Granted. 129. City of Springfield v. Spence. Motion to reinstate No. 207. Granted. 131. Poulson, executor, v. Litchford et al. Motion for leave to file petition in error to District Court of Franklin County. Granted. 132. Copener v. Lowe. Motion to dismiss for want of perfect record. Overruled. 133. Waterson, treasurer, v. Bradley. Motion for leave to file petition in error to District Court of Cuyahoga County. Granted. 134. Wilkins v. Rogers. Motion to reinstate No. 234 on general docket. Granted. 135. Wills v. Wills. Motion for leave to file petition in error to District Court of Cuyahoga County. Overruled. 136. Burckhardt v. Burckhardt. Motion to advance cause to original place for hearing. So ordered. 137. Cleveland & Mahoning Valley Railway Co. v. Robbins et al. Motion to reinstate No. 674 on general docket. Overruled. 138. Young v. Union Mutual Insurance Company. Motion to reinstate No. 230 on general docket. Overruled. 139. Brinker v. Speer. Motion for leave to file petition in error to District Court of Hamilton County. Withdrawn. 140. Bates v. People's Savings Loan Association. Motion for leave to file petition in error to District Court of Cuyahoga County. Granted, and advanced to be heard with No. 73. 141. McDowell v. Sapp, adm'r, et al. Motion for leave to file petition in error to District Court of Cuyahoga County. Granted. To be heard with No. 13, General Docket. 142. Waters v. The State of Ohio. Motion for leave to file petition in error to Court of Common Pleas of Richland County. Granted. 143. The Newport & Cincinnati Bridge Company v. Commissioners of Hamilton County. Motion for leave to file petition in error to District Court of Hamilton County. Overruled. No report. 144. Dye v. Gay. Motion for leave to file petition in error to District Court of Preble County. Granted. 145. Spayth v. The Commercial Bank of Tiffin. Motion to reinstate No. 922, General Docket. Granted. 146. Sneath v. McCarty. Motion to reinstate No. 923, General Docket. Granted. 147. Stokes, Cowgill et al. v. Vance. Motion for leave to file petition in error to District Court of Logan County. Overruled. 148. Dayton v. Hoagland et al. Motion to reinstate No. 351, General Docket. Granted. Leglow, Barton & Co. et al. v. Chase et al. Error to District Court of Morrow county. Affirmed. No penalty. No report. McCurdy et al. v. Briar Hill Coal Company et al. Error to the District Court of Mahoning county. Judgment of district court reversed. Jones v. Bangs. Error to the District Court of Ross county. Judgment below reversed. For report. Fry v. Franklin Insurance Company. Error to the Superior Court of Cincinnati. Reversed per curiam, but no further report. James v. Behle. Error to the District Court of Hardin county. Affirmed. No penalty and no report. Swing & Mellen, executors, v. Chatfield & Woods, executors. Error to the District Court of Clermont county. No penalty and no report. Kingman v. Loyer. Error to District Court of Morrow county. Judgment of common pleas affirmed. Per curiam, but no further report. Fitch, Stevenson & Co. v. Botts. Error to District Court of Brown county. Affirmed. No penalty and no report. Brown v. Myers. Error to District Court of Wayne County. Judgment below reversed. For report. Nicholson v. Lindsay et dl. Error to District Court of Jefferson County. Affirmed. No penalty and no report. Iliff v. Weymouth. Error to the District Court of Green County. Judgment reversed. To be reported. The following cases were dismissed for want of preparation : Zeigler et al v. Ryder, Montgomery County: Zogschwat jr. v. Welling ex rel, Hardin County; Jones v. Doolittle, Hancock County; Heffner v. Moyst, Pickaway County; Lucas v. Hawes & Co., Green County; Langmier v. Krijces, Cuyahoga County. Farmers' Insurance Co. v. Carter, assignee, Brown County. The following were passed for proof of service of plaintiff's brief: Tullos et al v. Rodgers, Washington County; Clark v. Roberts, Ashtabula County; Pomeroy National Bank v. Sugar Run Salt Company, Meigs County; Ohio v. Clark, Cuyahoga County; Roetlinger, jr., v. Burns, Hamilton County. The case of Kirland v. Wolf, error to the District Court of Hamilton County, was passed to June 15, for defendant's brief. NOTE.-Cases from No. 400 to 600 were called by the court. The court announced that they must presume that all cases were ready for trial; and cases as fast as reached and found unprepared would be dismissed. It was further announced that from this time forward greater strictness would be observed in the matter of considering motions to reinstate causes dismissed for want of preparation. That it must hereafter appear, not only that a good excuse could be given for the non-preparation of briefs, but that the case was meritorious and contained unsettled questions of real importance. RECORD OF NEW CASES FILED IN THE OFFICE OF The Ohio Law Journal. Columbus, O., June 16, 1883. IT will be noticed that the syllabi did not get into the report of last week. This was occasioned by the indisposition of the state reporter. Hon. E. L. Dewitt; a serious fact which also accounts for the absence of several opinions this week. ADMITTED TO THE BAR. The following named gentlemen were admitted to the bar from the Cincinnati Law School, June 1, 1883. Howard A. Merrill, Ai, Ohio; Horatio T. Willson, Wm. H. Sandford, Albert B. Tinker, Akron; Chas. J. Howard, Barnesville; Geo. C. McKee, Bridgeport; Albert M. Reinhart, Cardington; Herbert D. Blakemore, Charles E. Broun, Chas. H. Carey, Nathan Colm, F. Converse, Delano W. Cordell, William L. Crawford, Edward Dienst, P. D. Finnegan, Otto Pfleger, Henry Secrist, Dudley P. Wayne, Rogers Wright and Robt. C. Price, Cincinnati; William Henry Beard, Quincy A. Gilmore, Cleveland; T. M. Linsay, Columbus; L. L. B. C. Kirkendall, Dawkin's Mills; Charles W. Dale, Dayton; Edward T. Braudebury, Delaware; Alfred C. Dyer, Galion; Henry H. Brock, Hillsboro; James O. Ohler, Kenton; Horace Andrews, Le Roy; Napoleon B. Porter, London; Silas M. Douglas, Mansfield; Thomas H. McCornica, Marengo; Elias Jacoby, Marion; Grier M. Orn, Miamisburg; William C. Sprague, McConnelsville; James B. Matson, North Bend; Howard B. Magruder, Port Clinton; Linn W. Hull, Sandusky; Marion E. Dawford, Trimble; Martin K. Gautz, Troy; William L. Tobey, Winchester. The following are the names of those admitted to the bar, after passing examination by the Supreme Court Committee, June 5, 1883. Judson A. Wann, Charles C. Bow, Canton; William H. Jones, Cincinnati; Harry E. Lutz, Circleville; A. H. Atwater, M. W. Beacom, George L. Case, Fred H. Goff, Jay Comstock, F. M. Chandler, Cleveland; H. N. Cornilius, R. H. Evans, C. O. Cornilius, Frank A. Davis and Edmond Smith, Columbus; P. W. Schaden, Elyria; C. C. York, Greenville; C. M. Idleman, Marion; Geo. H. Black, McConnelsville; Frank G. Warren, Newark; Michael J. Clancy, New Lisbon; D. D. Williams, Norwalk; A. C. Richardson, Alex. C. Woodrow, Portsmouth; John E McCullough, Sidney; Thos. H. Tracy, Toledo; Jesse M. Lewis, Urbana; Geo. R. Davis, Wapakoneta. THE Republican Convention on the sixth inst. placed in nomination for judges of the supreme court, Hon. Wm. H. Upson, of Akron, for the short term ending February 9, 1887, and Hon. John H. Doyle for the term ending February 9, 1889. These gentlemen are now serving upon the bench of the supreme court with credit to themselves and satisfaction to to the bar, generally, and are both men whose character and ability honors even the high position they occupy. The other party might well name these same candidates as its choice but this will hardly be done. If as good men are nominated, the bar and the people of the state may well congratulate themselves that we will get good judges whichever side wins. Of the other candidates the LAW JOURNAL has nothing to say just now. The candidate for attorney-general we do not know and from what we hear the convention might have done worse or better. Mr. Dewitt, the obliging and gentlemanly reporter of the supreme court, was presented by his friends; but the attorneys of this and other counties feeling that his place as reporter, by reason of his high ability and genial disposition, could not well be filled, discour aged his nomination. For clerk of the supreme court the name of Dwight Crowell, the present incumbent was found on the slate and adopted by the convention. Had any other name been presented or fitness for the place been considered, a refer ence to the relative merits of the candidates might be in order. This may yet be proper, particularly if the convention to be held on the twentieth should select some good man. A TERRIBLE MUDDLE. In the LAW JOURNAL of April 21, 1883, we printed what we proudly supposed was an able article from the gifted pen of the editor-in-chief, entitled "Short Opinions." On May fourth, ult., the Central Law Journal did us the honor of copying and commending a large portion thereof, giving due credit as is Mr. Murfree's happy habit. In the May number of the Virginia Law Journal, under the head of "Miscellany," our modest suggestions were enlarged upon and in part quoted verbatim, etc., without, however, any credit being given. In fact, the adaptation was chiefly of the argument rather than the words, and no credit was demanded. But the joke comes along later. The same Virginia Law Journal for June has the following remarkable article given under its head of "Miscellany." "There is really never any good excuse for typographical errors--those irrepressible childdren of carelessness-and we dislike to acknowledge them in public. In our editorial of last month on "Short Opinions," we wrote "leaving," "intricate," and "absolutely," and were surprised to find them translated "having,' The ," "intimate," and "absolute." Of course in such cases all well regulated people understand that it is in order to abuse the printer. This, however, did not prevent the occurrence of a somewhat singular coincidence. Wisconsin Legal News favored us by copying the article into its columns, errors and all, but credited it to the Ohio Law Journal; and the Central Law Journal copied with commendation the greater portion of it, kindly correcting the errors, and credited it to the Pacific Coast Law Journal! We have looked somewhat anxiously to the O. L. J. and the P. C. L.'J., to see if we have been doing a little unconscious pilfering. We plead not guilty. Come, gentlemen; what say you? As was said by the clown's wife, "it is a little thing, but it is mine own!" In the state of bewilderment produced by this charge of stealing our own thunder, we can only declare that if that clown's wife was not more certain of the identity of her own little thing than is the Virginia Law Journal of the "Short Opinions" we so carefully prepared, then it must have been an extraordinary little thing indeed. The Central L. J. did also, on May eighteenth, reproduce the article to which we refer as appearing in the May number of the Virginia L. J., and did give credit to the Pacific Coast L. J., but as we have not seen the Wisconsin Legal News we cannot say whether that paper took our "Short Opinions " from the OHIO L. J. in its virgin acuteness, or from some other paper in its Virginia cuteness. The matter becomes more than ever laughable from the fact that the Central L. J. sagely remarks that "the interest of our brethren of the law press in the discussion awakened by our remarks on the subject of judicial prolizity seems to be growing at such a rate" etc., etc. The italics we supply to accentuate the complacency of the Central L. J. in appropriating the entire credit to itself, just as does the V. L. J. in the article quoted by the former. This is not the first time that a painstaking chicken has laid an egg, and the entire barnyard family, including the old rooster, has cackled over it, while the good chicken cackled very quietly but with the comforting thought that "it is. a little thing, but it is mine own." We can only add that the innocence of the Virginia L. J. is not as Lamblike as it ought to be, nor yet as Christianlike as we should expect from law editors. AN APOLOGY. Some of our worthy law makers take umbrage at our remarks of last week concerning the legislation. We wish to express our regrets that the article was allowed to appear in our columns in the mild and imperfect form resulting from its hasty preparation. There have been so many blunders of legislation lately that only the heroic treatment of deep cutting can ever hope to effect a cure. We should have mentioned the fact that various sections of the revised statutes have been repealed and re-enacted in duplicate! Other sections have been repealed and replaced by an entire act, the first section of which, has its proper numbering but is followed by sections two and three of the act itself! Another imposes certain duties upon certain individuals in the locality where they live respectably. It has come to this, then, at last, that a respectable mode of living is required by law! We cite these inaccuracies and inconsistencies simply to show what has been done by incompetent legislators. We sincerely hope that the sixty-sixth General Assembly of Ohio will be made up of different material from the one lately passed away, unwept, unhonored and unsung. We hope this, in view of the number of important particulars in which amendatory leg |