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no cause whatever will justify any unreasonable taken, and the goods are subsequently sold to plaintiff, use of a public road or street." Wood on Law of

to whom is also assigned the policy of insurance, with

the consent of the insurance company, such assignment Nuisance, § 258. To secure the full use and en- does not carry with it the oral consent of the insurance joyment of a public road, it is necessary that it agent that the original owner might increase the risk, be always open and unobstructed. The offence although made to plaintiff personally, he being at the

tiime the agent of the insurer. of obstructing it is not, therefore, determined necessarily by the length of time the thing that

Appeal from Webster Circuit Court. worketh hurt, inconvenience, or damage to the Action upon a policy of insurance upon a public continues, or by the number of times it

stock of goods. The policy was issued to one may be repeated; nor is it necessary, in order to Nicholas Hower, who was at the time of its isconstitute the offence, that actual injury be suf- suance the owner of the goods. Afterwards fered by any person. It is no more necessary Nicholas sold the goods to the plaintiff, and with that a public road shall be repeatedly, continu- the consent of the conıpany assigned to him the ously, or habitually obstructed by a person, to policy in suit. In the policy is a condition render him guilty of the offence of a public nui. against other insurance. The condition is in sance, than that any other violation of law shall these words: “If, without written consent be, in order to make the offence complete. But, hereon, there is any prior or subsequent insursubject to the exemptions arising from absolute

ance,

* * * this policy shall be void.” Afnecessity and accidental causes before mentioned,

ter the assignment of the policy by Nicholas to the offence is committed where, by actual ob- the plaintif, the latter obtained in another comstruction or impediment, a public road is ren- pany additional insurance in the sum of $300, dered by any person inconvenient or dangerous and within a month thereafter the goods were

burned. No consent of the defendant company To secure the reasonable and proper use and to the subsequent insurance was indorsed upon enjoyment of the public road by the public, the policy. The defendant for answer avers and of the railroad by its owners, each must be that the obtaining of the subsequent insurance required to observe the maxim of law, that every was a violation of the policy. There was a trial person is restricted against using his property to a jury, and verdict and judgment were rento the prejudice of others. And, as it is plain dered for the plaintiff. The defendantappeals. that the railroad and the public road cannot, at the crossing place, both be occupied and used at

ADAMS, J. the same time, even partially, the law, for man. The plaintiff contends that notwithstanding ifest reasons, makes it the duty of persons travel- the fact that he obtained additional insurance, ing upon the public road to stop until an ap- and without the written consent of the comproaching train or car passes that point. But pany indorsed upon the policy, it was not vio the public, on the other hand, is entitled to the lated. He claims that the company's agent gave unobstructed use of the public road at the cross- him permission orally to have additional insuring place, when it is not actually occupied, or ance, and that that is suffcient. The policy was about to be occupied by moving trains or cars.

issued at Fort Dodge. The company's agent at To concede to the owners of railways the right that place was one Beecher. The permission to stop their trains or cars at the place the pub- relied upon, if given, was given by Beecher. lic road crosses the railroad, would not merely The company insists that Beecher was merely render the latter inconvenient and dangerous,

authorized to receive and forward applications, but, in many cases, useless. Not even business

Not even business and had no power to give such permission. Some necessities will authorize the owners of railroads evidence was introduced upon this point. Weshall thus to obstruct the public roads. In this case not consider it, because in the view which we take the hand-car appears to have been stopped and it is unnecessary. For the purposes of the left stationary at the crossing place, and was an opinion it may be conceded that Beecher had actual impediment and obstruction of the public the power to give the permission.. A question road, and as such obstruction was intentionally is raised as to the admissibility of the evidence created, and did not arise from accidental causes,

introduced to prove that Beecher gave the perthe offence of the public nuisance was complete.

mission. The decision must turn upon that Judgment affirmed.

question. Before proceeding to consider it we

will state a few additional facts concerning FIRE INSURA:NCE.

which there is no controversy The policy was

issued in February, 1880. It was obtained by SUPREME COURT OF IOWA.

the plaintiff as the agent of the insured, the

owner of the goods, Nicholas Hower. The HOWER V. STATE INS. Co.

plaintiff was at that time in charge of the goods

as the agent of Nicholas. In August of the

April 18, 1882. same year the plaintiff purchased the goods of Where a policy of insurance against fire was taken out

Nicholas and took an assignment of the policy. on a stock of goods by the owner under a policy which The additional insurance was obtained in Deprovided that " if, without written consent hereon, therecember of the same year. The oral permission is any prior or subsequent insurance,

this policy shall be void," and the agent of the company

relied upon, if given, was given before the sale gives his oral consent that additional insurance may be

of the goods and assignment of the policy to

the plaintiff, and while he was acting merely as erected is to be determined rather by its character, locathe agent of the insured.

tion, and use, than by an inquiry into the motive of

the person erecting it. The evidence introduced, the admissibility of which is drawn in question, consisted of the

This is a petition for an injunction under the testimony of the plaintiff in tegard to what

statute (Gen. Stat. p. 477, 8°4), which provides Beecher said as constituting the alleged permis- malicious erection by an owner or lessee of land

that "an injunction may be granted against the sion. The plaintiff testified, against the defendant's objection, that at the time the policy was

of any structure upon it intended to annoy and issued Beecher said to him, speaking of the in- injure any proprietor of adjacent land in respect surance, “ You can increase it at any time." He

to his use or disposition of the same.” The also testified, against the defendant's objection,

structure which it is sought to enjoin the defendthat subsequently, in June, he informed Beecher

ants against erecting is a show-case in front of that he wanted $300 additional insurance, and

their store and upon their own premises, but to Beecher said, “Go and take it." The defendant

be so placed as to obstruct a side window in the insists that this evidence is immaterial, and

plaintiff's store, which store projects several feet ought not to have been admitted, and we have beyond that occupied by the defendants, and thus to say that we think that the defendant's posi

has space for a side window looking out upon tion is well taken. If there was any permission

the platform constructed from the front of the given to the plaintiff to obtain additional in

defendants' store to the street line. This side surance, it was given him as the agent of the

window is upon the line between the premises insured. The plaintiff could not obtain addi

of the two parties, and serves the occupant of tional insurance for himself at that time because

the plaintiff's store both for light and for the he had no insurance to which other insurance display of his goods. It was found that the obcould be added. Besides, he had no insurable

ject of the defendants in procuring the show-case interest in the goods upon which insårance

was two-fold : first, to display their own goods to could be affected.

the best advantage; and second, to prevent the The plaintiff doubtless supposed that if, as

public from seeing the goods of the occupant of agent, he was permitted to obtain additional

the plaintiff's store through his side window. insurance for his principal before the assign

The finding below was for defendants, and ment, he was, after the assignment permitted plaintiff brought the record up by motion in

error. to obtain additional insurance for himself. But we cannot so hold. The objection, where there

LOOMIS, J. is any, to additional insurance arises by reason

It was the right of the defendants, and the exerof what is called the moral hazard, and the cise of the right could not be regarded as unreasonmoral hazard depends mainly upon the charac-able, to occupy the space between the front of their ter of the insured. The defendant, we can store and the street line in the way most advantconceive, might be willing that Nicholas Hower ageous to their business. They were under no. should have additional insurance, and not be obligation to consult the interests of an adjoinwilling that his assignce, the plaintiff, should. ing proprietor. So far as he was availing himThe plaintift contends, however, that the per- self of the open space to secure to himself more mission was actually given to him. His posi- light by a window looking out upon it, or an option is that when he took an assignment of the portunity to display his goods by exposing them in policy he took the permission with it; or, in the window, he was availing himself of an opother words, that the permission, though oral, porturity that he held, and must have known ran with the policy. No authority is cited in that he held, by mere sufferance, for the support of such position, and none, we think, defendants' store could at any time have can be found, nor are we able to discover any been built out in front up to the street line, and principle which would justify such a ruling. so as completely to darken his side window,

In our opinion the court erred in admitting with no invasion of his rights and no ground of the evidence, and the judgment must be re- complaint on his part. If possibly a building versed.

line established by the city would have pre

vented them from building out to the street line, INJUNCTION-MALICIOUS ERECTION OF the mere fact that the plaintiff's building, was STRUCTURE.

erected before the building line was established

was one that gave him no rights against the deSUPREME COURT OF ERRORS OF CON- fendants as to the open space in front of their NECTICUT.

premises. What they might have done so effect

ually by building out over this space they had GALLAGHER v. DODGE.

an equal right to do in any other mode no more injurious to the adjoining proprietor. We can

not see why they might not reasonably do it in The statute (Gen. Stat. tit. 19, c. 17 p. 9, § 4) provides that an injunction may be granted against the malicious erec

the mode which they adopted. But it is claimed tion by any owner or lessee of land of any structure in

that the whole character of the act as to its letended to injure and appoy an adjoining proprietor. Held, gality is changed by the fact that an element of that under the statute the malicious quality of the act must be the predominant one, and give it character, and

malice went into it. And this brings us to the that the question whother a structure was maliciously

difficult question where the line shall be drawn between structures that are useful and

proper

in malice from the act done. And in this view of themselves, but into the erection of which a sub- the matter we think no rule can be laid down ordinate malicious motive enters, and those that is on the whole more easy of application, where the malicious intent is the leading feature and more likely to be correct in its application, of the act, and the possible usefulness of the than that the structure intended by the statute structure a mere incident.

must be one which from its character, or locaThe only case in which this statute has come tion, or use, must strike an ordinary beholder as up for construction is that of Harbison v. White, manifestly erected with a leading purpose to 46 Conn. 106, in which it was held that a coarse annoy the adjoining owner or occupant in his structure erected for the malicious purpose of use of his premises. If the defendant has erected darkening the windows of a neighbor fell within a house or block on his own land so close to the the intent of the statute, although it might dividing line between his lot and his neighbor's serve as a useful purpose in screening the de- as to darken the side windows of his neighbor's ants' premises from observation. Here the ma- house, no one would say that he had done a licious purpose was altogether the predominant thing that was mainly intended to annoy his one, and the usefulness of the structure very neighbor, and yet in his heart there may have limited and merely incidental. In the present been a malicious delight at the damage he was case these conditions are reversed, and it is doing his neighbor. In such a case the obvious found that the primary purpose was the reason- propriety of such an erection should determine able and proper one of "displaying the defend- the question in favor of the party making it, ants' goods, while the malicious part of the mo- without putting him under oath as to his motive was secondary. While we are not prepared tives. In the same way, if a land owner should to say that this relation of the two motives locate a privy or pig-sty directly on his line, and should always determine the court against the as close as possible to the near parlor windows of granting of an injunction, and the opposite re- his.r.eighbor, or should erect a rough screen of lation in favor of granting one, yet we regard boards before his windows to darken. them, the predominance of the malicious motive as the very character and location of the structures generally essential to a case in which the court would strike every beholder as decisive evidence will think itself justified in interfering. The of an intent to annoy, and of this intent as an statute speaks of the structure intended as a "ma- entirely predominant one; and a court might. licious erection,” and one the intent of which is very properly so determine without leaving the “to annoy and injure any proprietor of adjacent case to rest on proof, generally the party's own land.” We think we do not go too far in saying oath, that there was no malice in the case. that this malicious intent must be so predomi

No error. nating as a motive as to give character to the structure. It must be so manifest and positive IS A LUNATIC: LIABLE FOR SLANDER? that the real usefulness of the structure will be as manifestly subordinate and incidental. The A writer in the current number of the Amerilaw regards with jealousy all attempts to limit can Law Review, in a notice of Odgers on Libel the use to which a man may put his own property. and Slander, remarks: “We pass by the stateThis right to use is always subject to the whole- ment that even a lunatic is liable for a libel,' some limitation of the common law, that

every with simply advising any one who is disposed one must so use his own property as not to in- to accept it to examine the authorities." "The jure another's, and the person who violates this statement is startling, for the natural reflection rule is liable to the person injured whether he is that a lunatic is incapable of the malice which has any malicious intent or not; but here the is an essential of the offense. new principle is introduced, that the land owner Odgers says (Lib. and Slander, 353): “Lumay erect no structure on his own premises, nacy is in England no defense to an action for however lawful it would otherwise be, if he does slander or libel. Per Kelly, C. B., in Mordaunt it maliciously, with intent to annoy his neigh- V. Mordaunt, 39 L. J. Prob. and Mat. 59. In bor. The common law has always regarded the America, however, insanity at the time of speakexistence of malice in the exercise or pursuit of ing the words is considered a defense, 'where the one's legal rights as of no consequence, just as its derangement is great and notorious, so that the absence is of no consequence in the cases of in speaking the words could produce no effect on the jury caused by wrongful acts. The inquiry into hearers, because then it is manifest no damage and adjudication upon a man's motives has al- would be incurred.' But where the degree of inways been regarded as beyond the domain of sanity is slight, or not uniform, there evidence civil jurisprudence, which resorts to presuinp- of it is only. admissible in mitigation of damtions of malice from a party's acts instead of in- ages.". Citing Dickinson v. Barber, 9 Mass. 218; quiring into the real inner workings of his Yeates v. Reed, 4 Black. 463; Horner v_ Marmind. When, therefore, we inquire how far a shall's Admx., 5 Munf. 466. man was actuated by malice in erecting a struc- The citation from Mordaunt v. Mordaunt is enture on his own land, we are inquiring after tirely obiter, and a mere casual remark in the something that it will always be very difficult to course of the argument. The question was ascertain, unless we adopt, as in other cases where whether lunacy was a defense to an action of the courts inquire after malice, a presumption of divorce, and counsel in arguing said a lunatic is

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liable to an action for falje representation, and spect to torts to the reputation, as by oral or Kelly, C. B., interrupted to say, "and also for a written slander, some special considerations are libel.” This is the only authority cited to this due to the state of mind of the party which may doctrine in the text-books, and the only one we justly be offered in mitigation of damages. One can anywhere find.

of the earliest symptoms of an unbalanced mind In Dickinson v. Barber, 9 Mass. 225, evidence is often found in an unjust suspicion of others, of the insanity of the defendant after the speak- which by repeated meditation provokes an emoing of the words was held inadmissible. The court tional excitement in its subject, disabling him added that "they gave no opinion in this case from speaking either calmly or justly of the one how far, or to what degree, insanity was to be re- thus suspected. The thought of this person at ceived as an excuse in an action for defamatory once revolutionizes the judgment; the ideas habwords. Where the derangement was great and itually entertained concerning him crowd tunotorious, so that the speaking the words could multuously forward, and as any violent thinkproduce no effect on the hearers, it was manifest ing when accompanied by emotional fervor tends no damage would be incurred.' But where the to break out into speech or even writing, a party degree of insanity was slight, or not uniform, the may in such a condition utter defamatory words slander might have its effect, and it would be for without any ulterior purpose than that of relievthe jury to judge upon the evidence before them, ing the tension of his own thought." and measure the damages accordingly."

Judge Cooley says (Torts, 103): “Legal malIn Horner v. Marshall's Admx., 5 Munf. 466, ice certainly cannot be imputed to one who in it was held that proceedings on a judgment for law is incompetent to harbor an intent. It slander may be perpetually enjoined, by proof would seem a monstrous absurdity, for instance, that at the time of the speaking and of the judg. if one were held entitled to maintain an action ment the defendant was insane or in a state of for defamation of character for the thoughtless partial mental derangement on the subject to babbling of an insane person to his keepers, or which the words related. It appeared that the for any wild communication he might send plaintiff in the judgment had expressed an in-through the mail, or post upon the wall. There tention not to enforce it, but to hold it as security can be no tort in these cases, because the wrong for good behavior. This element however does lies in the intent, and an intent is an impossinot appear to have influenced the decision. bility. The rules which preclude criminal re

In Bryant v. Jackson, 6 Humph. 199, it was sponsibility are strictly applicable here, because held that insanity is a good plea to an action for there is an absence of the same necessary eleblander. This doctrine was not debated; the ment. And if in the case of defamatory publicacourt said it" is not controverted." The question tions, it be said that after all the requirement of was whether the proof offered and rejected was malice as an element in the wrong is only nomsufficient to make out the insanity.

inal, still there can be no tort, because presumpOn the authority of the Dickinson and Horner tively the utterances, or rather publications, cases, it was briefly held in Yeates v. Reed, 4 which proceed from a diseased brain, cannot inBlackf. 463, that insanity may be shown in ex- jure." cuse or mitigation according to circumstances. The citation from the Mordaunt case illustrates

In Gates v. Meredith, 7 Ind. 440, it was held how common law has frequently been made, and competent to prove that the defendant's mind was why it is so “ flexible” and “elastic." A judge so besotted by a long course of dissipation and drops a remark in an oral opinion, or interjects his character so depraved, that no one would re- one in an argument, having nothing to do with gard or believe what he said. The court said: the case. Somebody notes it down; and after

Slander must be malicious. An idiot, or luna- ward, when the case arises, to which it might tic, no matter from what cause he became so, apply, it is quoted as authority. Frequently it cannot be guilty of malice. He may indulge the is bad law and bad sense, like the dictum in the anger of the brute, but not the malice of one Mordaunt case, but it may answer to hang a de“who knows better."

cision on until some strong judge arises, who will There is no carefully expressed consideration contest it and pronounce the contrary. An inof the question in any of these cases, and no telligent text-writer ought to know better than other authorities are cited. In the text-books to set down and perpetuate what President Garon Slander and Libel there is little said on the field called “the staggerings of the mind."- Alb. subject. Mr. Townshend says, "insanity is a Law Journal. complete defense,” citing the above American authorities. This, as we have seen, is going rather too far. Starkie has nothing to say on this point, so far as we can discover. Neither Blank Endorsement:—The contract entered into Addison nor Underhill considers the point in by a blank indorsement of a promissory note his work on Torts.

will receive such a construction as will give efDr. Ordronaux says (Jud. Aspects of Insanity, fect to the intentions of the parties, and parol 333): “It is a well established principle that a evidence will be admitted to show and explain lunatic is liable for a trespass or a tort, because what liabilities were intended to be assumed at the matter of discretion or free moral agency is the time of the transaction. [Owings v. Baker, not inquirable into in a civil action. Yet in re- Supreme Court of Md.]

ADMITTED TO PRACTICE.

Out of a class of forty-six applicants, the Supreme Court last week admitted to the bar thirty-nine, as follows:

W. 8. Holmes, Hillsboro.
Olin J. Ross, Hillsboro.
George M. Phiel, Toledo.
Parks Hone, Toledo.
Chauncey F. Cook, Toledo.
A. M. Ensminger, Bucyrus
L. C. Feighner, Bucyrus.
L. L. Teel, Bucyrus.
T. W. Shreve, Martin's Ferry.
Robert P. Scott, Cambridge.
Peter F. Koontz, St. Louisville.
W. D. Smyser, Springfield.
Lowrey Jackson, Springfield.
Sheldon Parks, Salem.
Frank P. Fouts, Salem.
Frank' E. Ballard, Findlay.
Grafton C. Kennedy, Dayton.
Howard W. Luccock, Himbolton.
Charles H. Masters, Bryan.
John B. White, Montpelier.
C. C. Layman, Lucky, Wood County.
Frank W. Harrington, Warren.
Fred F. Thomas, Elyria.
Barnet Wager, Akron.
W. E. Allen, New Straitsville.
Harvey Musser, Akron.
James O. Browder, Van Wert.
T. P. Browder, Wilmington.
G. W. Allen, Van Wert.
James A. Mumma, Dayton.
Charles Moorman, Cincinnati.
L. E. Taylor, Kenton.
Adin T. Hills, Mansfield.
Walter 8. Mitchell, Mansfield.
C. W. Morriatt, Mansfield.
James J. Grant, Canton.
Arlington G. Reynolds, Painesville.
Paschal L. Moorman, Xenia.
George U. Sharp, Elyria.
8. A. Bowes, Medina.

Professor O. W. Aldrich, M. A. Daugherty and E. L. Taylor, of Columbus, and J. B. Brannon, of Cincinnati, composed the Examining Committee.

or furnishing materials under a contractor or sub-contractor, or to give to such person any right of action against such owner.

2. Where from the nature of the action defendant bas. notice that the plaintiff intends to charge him with the possession of a written instrument, formal notice to produce the same at the trial is not essential as a foundation for the introduction of parol testimony touching its contents.

3. The limitation of time within which suits under this statute must be brought, applies to controversies arising between the contractor or sub-contractor and the person furnishing niaterials or work, and not to rights of action on the part of the latter against the owner of the road.

Judgment affirmed.

82. Farmers' Insurance Company v. Joseph R. Butler. Error to District Court of Holmes County.

MCILVAINE, J. Held :

A policy of insurance for $800.00 on a certain dwelling house, which sum does not exceed two-thirds of the value of the house as appeurs from the application that was made a part of the policy, which also contains a stipulation that the company will pay to the assured "all loss or damage," not exceeding the sum assured, within ninety days after due notice and “proofs" of such loss or damage, is an open and not a valued policy.

Judgments of the district court and court of common pleas reversed and cause remanded.

81. George W. Boling v. Andrew J. Young. Error to the District Court of Knox County.

JOHNSON, J. Held :

1. A surety on a judgment is discharged from liability thereon, by a valid contract for an extension of time for the payment thereof, made by the judgment creditor with the principal judgment debtor, without the knowledge or consent of the surety.

2. An undertaking for stay of execution of a judgment on the docket of a justice of the peace, executed after the time allowed by law, in pursuance of an agreement of the parties is valid as a common law contract, it supported by a sufficient consideration, though it may not be effective as a statutory undertaking.

3. One who executes such an undertaking at the instance of the principal judgment debtor, without the knowledge or consent of the sureties thereon, knowing that they are such, is liable on the undertaking to the creditor, if his principal makes default, although the sureties are thereby released from liability.

4. Where, after stay of execution has expired on such a judgment,'a surety, who has been thus released, is compelled to pay the judgment to save his goods and chattels from forced sale by an officer who has seized them on execution issued on said judgment, he may recover back from the judgment creditor the amount so paid. Such compulsory payment is not a satisfaction of the judgment or of the undertaking, and the creditor may, after recovery back against him, maintain an action on the undertaking, if the principal makes default.

Judgment of the district court affirmed.

85. Edward Keating v. City of Cincinnati. Error to the District Court of Hamilton County.

WHITE, J. A municipal corporation in making a street along a hillsido, so excavated the ground in the street as to cause the land above to slide and injure the lot of the plaintiff. Held:

1. That the fact that the plaintiff's lot did not abut immediately on the street did not exempt the corporation from liability. Its liability did not depend upon the ownership of the injured property, but upon the extent of the injury of which its removal of the lateral support of the hill was the efficient cause.

2. That the liability extends to damages to buildings as well as to the land in its natural state, where the owner is not chargeable with negligence in making such improvements, and such damages result from want of due skill and care in making the street.

Judgment of the district court reversed and that of the common pleas afirmed.

Longworth, J., did not participate in the decision. 474. The Lake Sbore and Michigan Southern Railway Company v. Milo Sharpe and

Joshua M. Nettleton. Er. ror to the District Court of Ashtabula County. OKEY, C. J.

A railroad company exercising its powers subject to. the provisions of the present constitution, and required by

SUPREME COURT OF OHIO.

JANUARY TERM, 1888.

Hon. John W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

Tuesday, May 9, 1882.

GENERAL DOCKET. No. 80. Scioto Valley R. R. Co. v. Cronin, Error to the District Court of Ross County.

LONGWORTH, J., Held :

1. Under the act of March 31st, 1874, entitled "an act to secure pay to persons performing labor and furnishing materials in constructing railroads," (71 O. L. 51), a substantial compliance with the conditions of the statute providing for the service of written potice upon the ownor of the road is essential to create any obligation on the part of such owner toward the person performing labor

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