(146 N.E.) light of Flandermeyer v. Cooper, súpra, and, amount of the policy, and defendant anWestlake v. Westlake, supra, constrained to swered with a denial of liability, averring the conclusion that the equitable power ex- that no bill of sale was executed by the ists, even though it should rarely be exer- husband to the plaintiff, in accordance with cised, and that, therefore, the conclusion of the act of the General Assembly found in the courts below should be affirmed.

volume 109, page 330 et seq., of the Ohio Laws, and that the policy contained a provision exempting the company from liability,

in event the insured was not the sole and OHIO FARMERS' INS. CO. V. TODINO.

unconditional owner of the property covered (No. 18095.)

by the policy. (Supreme Court of Ohio. Oct. 14, 1924.)

Plaintiff and her husband testified that on

October 27, 1921, the husband gave the car (Syllabus by the Court.)

to the plaintiff ; that the car was stolen Insurance en 282(2)-Owner of automobile within a day or two thereafter, and proofs

not having complied with registration law of loss were made to the defendant comcannot recover on policy; “sole and uncon- pany, which'rejected the claim. It was conditional owner."

ceded or fully proven at the trial that no One who purchases from an insurance com- bill of sale was executed, and that the polpany a policy covering on an automobile, which icy contained the clause as pleaded by the policy contains a provision that the under

defendant. The common pleas directed a writer shall not be liable if the insured be not the sole and unconditional owner of the auto- verdict for defendant and entered judgment mobile, may not recover damages under such thereon, which judgment the Court of Appolicy when the owner, neither at the time of peals reversed, and the case is here for our the procuring of the insurance nor at the time construction of that statute, in so far as it the liability was claimed to have arisen, had is applicable to the precise facts. complied with the provisions of the act of

It is unnecessary at this time to deterthe General Assembly relating to the regis- mine what rights, if any, plaintiff might tration of automobiles, found in volume 109, p. have against her husband and all the world, 330, Ohio Laws.

if the issue were as to her right of possession Jones, J., dissenting.

of this car. The issue and the only issue in (Ed. Note.-For other definitions, see Words and Phrases, Second Series, Sole and uncon

this case is: What right has plaintiff, in ditional ownership.]

view of the sole and unconditional owner

ship clause, to recover from defendant for Error to Court of Appeals, Jefferson the loss of the car, it appearing that no County.

bill of sale had been issued to plaintiff for Action by Dorothy Todino against the Ohio the automobile prior to or at the time she

claimed to acquire title to the car, or at the Farmers' Insurance Company. Judgment for defendant was reversed by the Court of Apicy, or, indeed, at the time the car is claimed

time the indorsement was placed on the polpeals, and defendant brings error. Judg

to have been stolen ? ment of Court of Appeals reversed; judgment of common pleas court affirmed.—[By that in all gifts in which title passes to a

It is provided by the above-cited statute Editorial Staff.)

used motor vehicle the person making the The facts are stated in the opinion.

gift shall execute, in the presence of two Frank Taggart, of Wooster, Don McVay, witnesses, a bill of sale in duplicate, and of Le Roy, and S. C. Kerr, of Steubenville, deliver same to the donee at or before the for plaintiff in error.

passage of title; that such bill of sale shall Gardner & Bigger, of Steuben ville, for be duly verified before a notary public or othdefendant in error.

er person authorized to administer oaths;

that any such bill of sale not verified before CONN, J. The facts in this case disclose delivery shall be null and void, and of no that one Todino, husband of the plaintiff, on effect in law; that each person so receivApril 29, 1921, procured of the Ohio Farm- | ing a used motor vehicle shall obtain from ers' Insurance Company, hereinafter re- the person conveying, at or before the transferred to as defendant, a fire and theft pol- fer or delivery, such bill of sale in dupliicy covering on an automobile; that on Oc- cate, and, finally, that the person receivtober 27, 1921, the husband visited the agenting the bill of sale shall, within three days, of the company and stated that he wanted file one of the duplicate copies with the clerk the policy "corrected” by having it run in of courts of the county, who shall affix his favor of his wife, hereinafter referred to as official seal to such instrument. Other secplaintiff; that pursuant to such direction tions of the act provide money penalties for the agent of the company made an indorse- the failure to observe the several require ment, substituting the plaintiff instead of ments. the husband as the insured.

The authorities are plentiful that courts Subsequently suit was entered in the full always look to the language of a statute, itg

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

subject-matter, and the wrong or evil it, policy forms are settled by statute. While seeks to remedy or prevent, or, in other Ohio has not provided a statutory form of words, the purpose sought to be accom- policy, practically all policy forms in use in plished by its enactment, to determine wheth- this state are in line with the accepted forms er a transaction governed by such statute is of other states. The one in suit is the standvoid if the statutory requirements be not ard form. Plaintiff under the law was refollowed, or whether (there being no direct quired to know the contents of her policy. provision making such transaction void) the If in doubt as to its scope and extent, it penalty provided by the statute for the fail. was her duty to consult some one who could ure to observe it is all that is to be exacted. advise her. An explanation to the agent

A distinction has been recognized between of the company of her so-called ownership statutes designed for the protection of the at the time he was directed by the husband public and those designed primarily for the to change the name of the insured would raising of revenue. The courts are in ac- have resulted either in the cancellatiou of cord that, where a statute is enacted to pro- the policy or in an accurate indorsement tect the public against fraud or imposition, being made thereon. If the latter had been or to safeguard the public health or morals, made, the company would have been esa contract in violation thereof is void, even topped to plead the ownership clause. Thus though a money penalty also is exacted. both parties would have been protected, and

The statute under consideration is not a the loss of this car, which was stolen the revenue raising measure. No fees of any con- next day after the indorsement was placed sequence are paid or are payable. It was not on the policy, would have been sustained by designed to prevent the sale of automobiles. the party who, having full knowledge of the Its sole purpose was to prevent, in so far as facts, assumed the risk, No fraud on the possible, the stealing of automobiles, which, part of the company or its agent is pleadbecause of the opportunity to commit the ed, nor could any be set up under the concrime and escape detection, unfortunately ceded facts, and, this being so, the policy had become, and is still, so prevalent as to conditions must be respected. be classifiable as a near industry. The dec As bearing upon the question of what is laration of the General Assembly which necessary to pass title, attention is called passed the act is that its purpose was and to the case of Building Association v. Clark, is to prevent traffic in stolen cars.

43 Ohio St. 427, 2 N. E. 846, in which it was In view of the requirement of the stat- held that the purchaser from the mortgagor ute that a bill of sale shall be verified be of lands incumbered by an unrecorded mortfore it can have force and effect, how can gage takes title thereto free of such incumit be successfully argued that no bill at all brance, even if such purchaser had full may have force and effect? Omission of ac- knowledge and notice of the existence of the tion is not action. Nonperformance is not mortgage. This is so because the statute reperformance. Failure to do a thing is not lating to the recording of such instruments the doing of it. The absence of a paper is provides that a mortgage shall take effect not the equivalent of a paper. As title can- from the time it delivered to the recorder not pass without a verified bill of sale, and of the proper county for record, and, until in this transaction no bill of any kind or delivered, it is invalid to all the world, excharacter was executed by the donor or filed cept the parties to it. by the donee (plaintiff), how can it be claimed In the case of Holliday v. Franklin Bank that at the time of the theft plaintiff was the of Columbus, 16 Ohio, 533, it was held that sole and unconditional owner of the car, a mortgage has no effect, either in law or within the meaning of the policy?

equity, until it is delivered to the recorder of Conditions in policies are part of the con- | the county for record. Statutes relating to sideration. For a small premium an insured conveyancing are designed to settle the title obtains a large protection. A recovery on an to real estate, so that individuals having to insurance policy in the face of a violation do with lands may be protected, and were of the provisions of the policy has the ef- passed primarily to prevent crime, not to fect of penalizing the prudent and careful raise revenue. How can the statute in ques policy holders for the benefit of the careless tion be waived or disregarded, in the face and negligent one. This is so, since insur- of the construction given by this court to ance companies are merely clearing houses the statutes relating to conveyancing? for their policy holders. Such companies This transaction is not like unto that of primarily bring no property into the world. who in good faith buys a car from Insurance companies are trustees of an ex- another believed to be the owner, but who, press trust, and the payment by the officers in fact, is not the owner; for instance, a of such companies of questionable bills and thief. In such case, the courts have allowed charges is as reprehensible as would be the a recovery. A recent case of that type is squandering of trust funds by bankers, ad- Norris v. Alliance Insurance Co. (N. J. Sup.) ministrators, guardians, or other trustees.

123 Atl. 762. The court there says: Insurance contracts, as a rule, are plain. "The plaintiff did not, knowingly, make any They follow standard forms. In some states false representation to defendant as to his


(145 N.E.) ownership; he supposed he was the uncondi- , clerk of courts, and carries the imprint of tional and sole owner without any fact known the seal of the clerk. to him to the contrary, and, so far as this

True, as has been argued, it was held in record shows, was, and is, the only person Conithan v. Royal Insurance Co., 91 Miss. claiming ownership."

386, 45 South. 361, 18 L. R. A. (N. S.) 214,

124 Am. St. Rep. 701, 15 Ann. Cas. 539, The case at bar is quite a different one, that a policy of fire insurance issued to the because plaintiff here knew, or was bound keeper of a bawdyhouse upon furniture used as a matter of law to know, that she had no therein was not void because of the unlawful title. She is not in position to assert her business conducted there. But on examinagood faith, in view of the fact that she dis- tion that case discloses there was no quesobeyed the statute. In effect, she misreption raised of the title of the insured. Adresented her ownership of the car to the mittedly, the business conducted in the defendant. In the last above cited case the bawdyhouse was illegal, but the furniture purchaser violated no law and was allowed a was not held in violation of any law. Furrecovery. In the case at bar, the plaintiff thermore, there was no provision in the poldisobeyed the law and therefore should not icy making an illegal use of the furniture a bave a recovery.

It is inconceivable that a ground of fortfeiture of the policy. person at one moment may defy the state The Supreme Court of that state (Missisand in the next invoke its protecting arm. sippi) does not lose sight of the sound rule, One may not disobey a statute and thereafter however, because in Pollard v. Phænix Insurask the courts to give him the benefit con ance Co., 63 Miss. 244, 56 Am. Rep. 805, ferred by such statute.

where a question arose under a statute of There is a line of cases upholding the the state making provision for the collection principle that, where a contract involved in of its revenue, one of the provisions of that suit grows out of a prior illegal contract, statute being that a person exercising any the later transaction may be deemed valid, of the privileges enumerated should pay a if it does not depend for its validity upon privilege tax, a contract of insurance was the original illegal transaction; in other held to be within the statute. The facts words, if it is purely collateral. It is not were these: One Mrs. Pollard was a mer. difficult to understand the reason for this chant in Okolona and entered into a contract rule, but sometimes its application is a close of insurance against loss by fire with an inquestion.

surance company. Subsequently the stock of One test is to ascertain whether one may goods claimed to have been insured under the make out a case in which is involved the sec-policy was destroyed. Proofs of loss were ond transaction, without calling to his aid the made, and, liability being denied, suit was Megal transaction. As was said in Minne entered to collect the loss and damage. The sota Lumber Co. v. Whitebreast Coal Co., insurance company set up the defense that 66 ni. App. 248, the test is: May the de- the contract was void because the plaintifr mand be enforced in law without the aid of was doing business in violation of law. The the illegal contract to establish the case ?

section of the statute (Code 1880, $ 589) in In the case at bar, while the burden of evi- reference to which privilege taxes were redence may have shifted to the insurance com- quired to be paid provided that any perpany, it was necessary that the plaintiff rest son who shall exercise any of the privileges her title to the car in question on the bill enumerated in the chapter, “without first of sale required by the statute. Otherwise paying the price and procuring license as reshe had no title. Nor can plaintiff succeed quired, shall on conviction be fined," etc., where, although not required to resort to "or imprisoned,” etc., or both, "and all conthe illegal transaction to establish a prima tracts made with any person who shall viofacie case, he is compelled to resort to it to late this act, in reference to the business meet a complete prima facie defense. Math-carried on in disregard of this law, shall be ews v. Wayne Junction Trust Co. (D. C.) null and void, so far only as such person 197 Fed. 237, holds that a receiver, having may base any claim upon them, and no suit made a prima facie case which was complete shall be maintainable in favor of such perly answered by defendant, who was com son on any such contract," etc. The court pelled in rebuttal to bring out and rely on a held that a contract of insurance to protect fraudulent transaction to which his compa- the goods used in the business conducted in ny and defendant had been parties, could violation of the revenue laws was a connot recover.

tract "in reference to the business carried In 1 Story on Contracts (5th Ed.) $ 761, it on in disregard of this law," and therefore is suggested that there is a distinction be- void. tween cases where the statute is merely di In Vining v. Bricker, 14 Ohio St. 331, rectory and those where the statute is pro- a note was given in consideration of a sale hibitory. In the instant case it appears the of diseased sheep; the owner knowing them statute is prohibitory, because a bill of sale to be diseased when he sold them to the givcan have no force and effect unless it is proper of the note. The statute (4 Curwen's Rev. erly executed and filed for record with the St. p. 2866) then in force provided that who

ever, being the owner of diseased sheep, Original mandamus by the State on rela. should sell them without fully disclosing the tion of Benjamin Meck against the Board of fact to the purchaser, should be fined. There Deputy State Supervisors of Elections of was a further provision in the statute that Crawford County. Writ refused.—[By Edi. nothing in the section should change the torial Staff.] right of any one sustaining damage in bring The facts are stated in the opinion. ing suit for the recovery thereof, or in de Benjamin Meck, of Bucyrus, in pro. per. fending against any suit brought upon the Clarence U. Ahl, Pros. Atty., and Gallinger sale of such sheep.

& McCarron, all of Bucyrus, for respondent. In view of the proviso to the section, this court held that the note was not yoid, for MARSHALL, C. J. This is an original the reason that the Legislature especially proceeding in this court for a writ of manprovided "that the rights of the party sus-damus seeking to compel the board of deputy taining damage, in his action or defense, state supervisors of elections of Crawford should remain unchanged, neither enlarged county, Ohio, to recount all the votes cast nor diminished by the statute."

at the recent primary election for the nomSuppose the penalty had been that such a ination of judge of the court of common note was to be deemed null and void, would pleas of said county on the Democratic it not have been conclusive? That is pre- ticket. cisely what the General Assembly said should The petition alleges that the relator Benbe the status of a transaction of the kind jamin Meck and ore Charles Gallinger were in suit, in so far as the passage of title is rival candidates for the nomination and that concerned. Hence the doctrine of uphold the official count disclosed that this relator ing a contract as unrelated to a prior illegal Meck had 2,718 votes and that Gallinger had contract has no application in this case. 2,740 votes, that 6,456 Democratic votes were

The judgment of the Court of Appeals cast at that election, and that the total vote should be and is reversed. The judgment cast for the nomination for judge was 998 of the Common Pleas should be and is af- less than the entire number of Democratic firmed.

votes polled. Judgment accordingly.

The petition contains no allegations of

fraud, mistake, or other irregularity, and alMARSHALL, C. J., and ROBINSON, MAT- though the petition contains the allegations THIAS, and DAY, JJ., concur.

that the canvass made by the precinct judges

and clerks does not correctly state the result JONES, J. (dissenting). I dissent, for the of said primary election, and the further alreason that the provisions of the policy aplegation that if the votes had all been truly ply only to the owner at the time of procur-counted and correct returns made thereof it ing insurance; there is nothing in the policy would show that the relator received a larger applying its terms to the transferee of the number of votes than his opponent, these alautomobile, except the provision requiring legations are apparently only the opinion of the assent of the insurance company.

the relator, and a conclusion stated by him without any facts being stated from which such conclusion could reasonably be drawn.

It is not claimed that in a single precinct mistakes had been made or fraud perpetrat

ed, but on thc contrary in another allegation STATE ex rel. MECK v. BOARD OF DEP. of the petition the relator has with com

UTY STATE SUPERVISORS OF ELEC- mendable ethics stated that 998 Democratic TIONS OF CRAWFORD COUNTY. (No. votes cast at said primary were not counted 18770.)

for either of the candidates for common (Supreme Court of Ohio. Oct. 7, 1924.)

pleas judge, without stating in terms that

any of said 998 Democratic voters had in (Syllabus by the Court.)

fact voted for either of said candidates. 1. Elections C260—No duty devolves on coun

It is apparent therefore that the relator ty board to recount undisputed ballots.

has no knowledge of any particular facts or No duty is enjoined by section 4984, Gen- circumstances which would support his beeral Code, upon the county board of deputy lief that there were votes cast which were state supervisors of elections to recount the un not counted, and it is equally apparent that disputed ballots cast in the several precincts he is only entertaining the hope that a reof the county upon the demand of any candidate. count of the ballots might result in 23 addi2. Elections C260 Recount of undisputed

tional votes being found for relator. ballots unprovided for except in election con

The petition further discloses that the retests.

lator does not claim there were less than No provision is made by statute for any 2,740 votes cast for Gallinger, or that any recount of undisputed ballots otherwise than in votes actually cast for relator were counted an election contest.

for Gallinger. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.) [1] It must further be kept in mind that, state supervisors of elections of each county this proceeding is not an election contest. shall meet and canvass the vote and certify the It is an action for the extraordinary writ of result," etc. mandamus to compel officials to perform acts which relator claims are enjoined upon them

By reference to this section 4984 it will be by law. Whether or not an election contest

seen that practically the same language is would lie at the suit of a defeated candidate used in defining the duties of the board of at a primary election, we have neither decid- deputy state supervisors as is used in seced nor considered. We are only concerned tion 4983, in defining the duties of the judges with the question whether by the provisions

and clerks at the close of the polls in each of section 4984, General Code, a clear legal precinct. Standing alone this would seem to duty is enjoined upon the board of deputy indicate that the same duty is imposed upon state supervisors of elections to break the

a county board as is imposed upon the judges seal of all the ballots cast in each and every ter provisions of section 4984, it will be seen

and clerks. If, however, we examine the lat. precinct, and recount them, or whether on the other hand it is the duty of the said

that practically the same language is emboard only to count the tallies of the votes ployed in defining the duties of the state suor abstract of votes certified to it by the pre- ination papers are required to be filed with

pervisor as to those candidates whose nomcinct judges and clerks. That section reads the state supervisor. It is apparent that a as follows:

colossal task would be imposed upon the "On the following Thursday after the primary county board if required to recount all of the at ten o'clock forenoon the board of deputy ballots cast at a primary election in the counstate supervisors of elections of each county shall meet and canvass the vote and certify the ty, and would be especially true in the more result or declare the same in the

manner here- populous counties of the state, and it is furinafter provided. The controlling committee ther apparent that an impossible task would of any party participating in the primary may be imposed upon the state supervisor. The have one representative present during the can- impossibility of this latter task is emphavass of the vote. In the case of candidates for sized when it is seen that it would be imnomination by primary whose nomination pa- possible for the ballots to be in the possession pers are required to be filed with the state su of the county board and of the state superpervisor of elections such boards of deputy visor at the same time. state supervisors shall, on blanks provided for

Again it would seem utterly absurd to have that purpose, make full and accurate returns

two separate and distinct counts of the votes of votes cast for each candidate and shall certify duplicate copies thereof to the state su

for county candidates, and three separate pervisor who shall proceed to canvass all of and distinct counts of votes for state candi. the votes cast for the respective candidates dates made in exactly the same way. above mentioned and shall declare the result, It is a well-known fact, of which this court and shall, not less than forty days before the may take judicial notice, that ever since the election, certify the same together with a form enactment of this statute the votes have been of official ballot therefor to the proper boards counted by the precinct judges and clerks, of deputy state supervisors of the several coun- and that the deputy state supervisors of the ties of the state. In case of nominations for offices in districts comprising more than one

respective counties have only counted the county, the boards of deputy (state) supervisors tallies without esamination of any ballots of elections in such counties shall certify the other than disputed ballots. This fact must results of the primary as regards such district be equally well known to the Legislature, candidates to the board of deputy state super- and if this was not the legislative intent that visors of the county in such district in which body has had abundant opportunity to make the nomination papers were originally filed, the law more definite. which board shall proceed to canvass all of the This theory and determination of the matreturns so made of the votes cast for the re

ter find support in the fact that section 4983 spective candidates and shall declare the result requires that if the judges are in doubt, or and certify the names of the successful candidates to the boards of deputy state supervisors any difference of opinion exists concerning of the several counties comprising such district one or more ballots, such ballots shall be to be placed on the ballot. In case of nomina- sealed up and marked “disputed ballots," tions for offices within a county the results of and while section 4984 makes no specific pro the primary shall be declared by the board of vision for such ballots being counted by the deputy state supervisors of such county." board of deputy state supervisors, when sec

tions 4983 and 4984 are read together, it must If by the foregoing provisions a duty is en- be conclusively inferred that when disputed joined upon the board to recount the ballots, ballots are transmitted to the board of depthat duty does not depend upon a request uty state supervisors with the information being made by one or more of the candidates. that such disputed ballots have not been This controversy therefore turns upon a prop- counted, or, if counted, only in part, that it er construction of that portion of the above shall be the duty of the board of deputy quoted section which reads as follows:

state supervisors to complete the count. No "On the following Thursday after the primary provision having been made in section 4983 at ten o'clock forenoon the board of deputy for the determination of undisputed ballots,

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