no cause whatever will justify any unreasonable use of a public road or street." Wood on Law of Nuisance, § 258. To secure the full use and enjoyment of a public road, it is necessary that it be always open and unobstructed. The offence of obstructing it is not, therefore, determined necessarily by the length of time the thing that worketh hurt, inconvenience, or damage to the public continues, or by the number of times it may be repeated; nor is it necessary, in order to constitute the offence, that actual injury be suffered by any person. It is no more necessary that a public road shall be repeatedly, continuously, or habitually obstructed by a person, to render him guilty of the offence of a public nuisance, than that any other violation of law shall be, in order to make the offence complete. But, subject to the exemptions arising from absolute necessity and accidental causes before mentioned, the offence is committed where, by actual obstruction or impediment, a public road is rendered by any person inconvenient or dangerous to pass. To secure the reasonable and proper use and enjoyment of the public road by the public, and of the railroad by its owners, each must be required to observe the maxim of law, that every person is restricted against using his property to the prejudice of others. And, as it is plain that the railroad and the public road cannot, at the crossing place, both be occupied and used at the same time, even partially, the law, for manifest reasons, makes it the duty of persons traveling upon the public road to stop until an approaching train or car passes that point. But the public, on the other hand, is entitled to the unobstructed use of the public road at the crossing place, when it is not actually occupied, or about to be occupied by moving trains or cars. To concede to the owners of railways the right to stop their trains or cars at the place the public road crosses the railroad, would not merely render the latter inconvenient and dangerous, but, in many cases, useless. Not even business necessities will authorize the owners of railroads thus to obstruct the public roads. In this case the hand-car appears to have been stopped and left stationary at the crossing place, and was an actual impediment and obstruction of the public road, and as such obstruction was intentionally created, and did not arise from accidental causes, the offence of the public nuisance was complete. Judgment affirmed. FIRE INSURANCE. HOWER v. STATE INS. Co. taken, and the goods are subsequently sold to plaintiff, to whom is also assigned the policy of insurance, with the consent of the insurance company, such assignment does not carry with ic the oral consent of the insurance agent that the original owner might increase the risk, although made to plaintiff personally, he being at the tiime the agent of the insurer. Appeal from Webster Circuit Court. * Action upon a policy of insurance upon a stock of goods. The policy was issued to one Nicholas Hower, who was at the time of its issuance the owner of the goods. Afterwards Nicholas sold the goods to the plaintiff, and with the consent of the company assigned to him the policy in suit. In the policy is a condition against other insurance. The condition is in these words: "If, without written consent hereon, there is any prior or subsequent insurance, **this policy shall be void." After the assignment of the policy by Nicholas to the plaintiff, the latter obtained in another company additional insurance in the sum of $300, and within a month thereafter the goods were burned. No consent of the defendant company to the subsequent insurance was indorsed upon the policy. The defendant for answer that the obtaining of the subsequent insurance was a violation of the policy. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals. ADAMS, J. avers The plaintiff contends that notwithstanding the fact that he obtained additional insurance, and without the written consent of the company indorsed upon the policy, it was not violated. He claims that the company's agent gave him permission orally to have additional insurance, and that. that is sufficient. The policy was issued at Fort Dodge. The company's agent at that place was one Beecher. The permission relied upon, if given, was given by Beecher. The company insists that Beecher was merely authorized to receive and forward applications, and had no power to give such permission. Some evidence was introduced upon this point. We shall not consider it, because in the view which we take it is unnecessary. For the purposes of the opinion it may be conceded that Beecher had the power to give the permission. A question is raised as to the admissibility of the evidence introduced to prove that Beecher gave the permission. The decision must turn upon that question. Before proceeding to consider it we will state a few additional facts concerning which there is no controversy The policy was issued in February, 1880. It was obtained by the plaintiff as the agent of the insured, the The owner of the goods, Nicholas Hower. plaintiff was at that time in charge of the goods as the agent of Nicholas. In August of the same year the plaintiff purchased the goods of Nicholas and took an assignment of the policy. The additional insurance was obtained in December of the same year. The oral permission relied upon, if given, was given before the sale of the goods and assignment of the policy to the plaintiff, and while he was acting merely as the agent of the insured. The evidence introduced, the admissibility of which is drawn in question, consisted of the testimony of the plaintiff in regard to what Beecher said as constituting the alleged permission. The plaintiff testified, against the defendant's objection, that at the time the policy was issued Beecher said to him, speaking of the insurance, "You can increase it at any time." He also testified, against the defendant's objection, that subsequently, in June, he informed Beecher that he wanted $300 additional insurance, and Beecher said, "Go and take it." The defendant insists that this evidence is immaterial, and ought not to have been admitted, and we have to say that we think that the defendant's position is well taken. If there was any permission given to the plaintiff to obtain additional insurance, it was given him as the agent of the insured. The plaintiff could not obtain additional insurance for himself at that time because he had no insurance to which other insurance could be added. Besides, he had no insurable interest in the goods upon which insurance could be affected. The plaintiff doubtless supposed that if, as agent, he was permitted to obtain additional insurance for his principal before the assignment, he was, after the assignmen,t permitted erected is to be determined rather by its character, location, and use, than by an inquiry into the motive of the person erecting it. This is a petition for an injunction under the statute (Gen. Stat. p. 477, § 4), which provides that "an injunction may be granted against the malicious erection by an owner or lessee of land of any structure upon it intended to annoy and injure any proprietor of adjacent land in respect to his use or disposition of the same." The structure which it is sought to enjoin the defendants against erecting is a show-case in front of their store and upon their own premises, but to be so placed as to obstruct a side window in the plaintiff's store, which store projects several feet beyond that occupied by the defendants, and thus has space for a side window looking out upon the platform constructed from the front of the defendants' store to the street line. This side window is upon the line between the premises of the two parties, and serves the occupant of the plaintiff's store both for light and for the display of his goods. It was found that the object of the defendants in procuring the show-case was two-fold: first, to display their own goods to the best advantage; and second, to prevent the public from seeing the goods of the occupant of the plaintiff's store through his side window. The finding below was for defendants, and plaintiff brought the record up by motion in error. LOOMIS, J. It was the right of the defendants, and the exercise of the right could not be regarded as unreason to obtain additional insurance for himself. But we cannot so hold. The objection, where there is any, to additional insurance arises by reason of what is called the moral hazard, and the moral hazard depends mainly upon the charac-able, to occupy the space between the front of their ter of the insured. The defendant, we can conceive, might be willing that Nicholas Hower should have additional insurance, and not be willing that his assignee, the plaintiff, should. The plaintiff contends, however, that the permission was actually given to him. His position is that when he took an assignment of the policy he took the permission with it; or, in other words, that the permission, though oral, ran with the policy. No authority is cited in support of such position, and none, we think, can be found, nor are we able to discover any principle which would justify such a ruling. In our opinion the court erred in admitting the evidence, and the judgment must be reversed. INJUNCTION-MALICIOUS ERECTION OF STRUCTURE. SUPREME COURT OF ERRORS OF CON- GALLAGHER v. DODGE. The statute (Gen. Stat. tit. 19, c. 17 p. 9, 24) provides that an injunction may be granted against the malicious erection by any owner or lessee of land of any structure intended to injure and annoy an adjoining proprietor. Held, that under the statute the malicious quality of the act must be the predominant one, and give it character, and that the question whether a structure was maliciously store and the street line in the way most advantageous to their business. They were under no obligation to consult the interests of an adjoining proprietor. So far as he was availing himself of the open space to secure to himself more light by a window looking out upon it, or an opportunity to display his goods by exposing them in the window, he was availing himself of an opportunity that he held, and must have known that he held, by mere sufferance, for the defendants' store could at any time have been built out in front up to the street line, and so as completely to darken his side window, with no invasion of his rights and no ground of complaint on his part. If possibly a building line established by the city would have prevented them from building out to the street line, the mere fact that the plaintiff's building was erected before the building line was established was one that gave him no rights against the defendants as to the open space in front of their premises. What they might have done so effectually by building out over this space they had an equal right to do in any other mode no more injurious to the adjoining proprietor. We cannot see why they might not reasonably do it in the mode which they adopted. But it is claimed that the whole character of the act as to its legality is changed by the fact that an element of malice went into it. And this brings us to the difficult question where the line shall be drawn between structures that are useful and proper in themselves, but into the erection of which a subordinate malicious motive enters, and those where the malicious intent is the leading feature of the act, and the possible usefulness of the structure a mere incident. The only case in which this statute has come up for construction is that of Harbison v. White, 46 Conn. 106, in which it was held that a coarse structure erected for the malicious purpose of darkening the windows of a neighbor fell within the intent of the statute, although it might serve as a useful purpose in screening the deants' premises from observation. Here the malicious purpose was altogether the predominant one, and the usefulness of the structure very limited and merely incidental. In the present case these conditions are reversed, and it is found that the primary purpose was the reasonable and proper one of displaying the defendants' goods, while the malicious part of the motive was secondary. While we are not prepared to say that this relation of the two motives should always determine the court against the granting of an injunction, and the opposite relation in favor of granting one, yet we regard the predominance of the malicious motive as generally essential to a case in which the court will think itself justified in interfering. The statute speaks of the structure intended as a "malicious erection," and one the intent of which is "to annoy and injure any proprietor of adjacent land." We think we do not go too far in saying that this malicious intent must be so predominating as a motive as to give character to the structure. It must be so manifest and positive that the real usefulness of the structure will be as manifestly subordinate and incidental. The law regards with jealousy all attempts to limit the use to which a man may put his own property. This right to use is always subject to the wholesome limitation of the common law, that every one must so use his own property as not to injure another's, and the person who violates this rule is liable to the person injured whether he has any malicious intent or not; but here the new principle is introduced, that the land-owner may erect no structure on his own premises, however lawful it would otherwise be, if he does it maliciously, with intent to annoy his neighbor. The common law has always regarded the existence of malice in the exercise or pursuit of one's legal rights as of no consequence, just as its absence is of no consequence in the cases of injury caused by wrongful acts. The inquiry into and adjudication upon a man's motives has always been regarded as beyond the domain of civil jurisprudence, which resorts to presumptions of malice from a party's acts instead of inquiring into the real inner workings of his mind. When, therefore, we inquire how far a man was actuated by malice in erecting a structure on his own land, we are inquiring after something that it will always be very difficult to ascertain, unless we adopt, as in other cases where the courts inquire after malice, a presumption of malice from the act done. And in this view of the matter we think no rule can be laid down that is on the whole more easy of application, and more likely to be correct in its application, than that the structure intended by the statute must be one which from its character, or location, or use, must strike an ordinary beholder as manifestly erected with a leading purpose to annoy the adjoining owner or occupant in his use of his premises. If the defendant has erected a house or block on his own land so close to the dividing line between his lot and his neighbor's as to darken the side windows of his neighbor's. house, no one would say that he had done a thing that was mainly intended to annoy his neighbor, and yet in his heart there may have been a malicious delight at the damage he was doing his neighbor. In such a case the obvious propriety of such an erection should determine the question in favor of the party making it, without putting him under oath as to his motives. In the same way, if a land owner should locate a privy or pig-sty directly on his line, and as close as possible to the near parlor windows of his neighbor, or should erect a rough screen of boards before his windows to darken them, the very character and location of the structures would strike every beholder as decisive evidence of an intent to annoy, and of this intent as an entirely predominant one; and a court might very properly so determine without leaving the case to rest on proof, generally the party's own oath, that there was no malice in the case. No error. IS A LUNATIC LIABLE FOR SLANDER? A writer in the current number of the American Law Review, in a notice of Odgers on Libel and Slander, remarks: "We pass by the statement that 'even a lunatic is liable for a libel,' with simply advising any one who is disposed to accept it to examine the authorities." The statement is startling, for the natural reflection. is that a lunatic is incapable of the malice which is an essential of the offense. Odgers says (Lib. and Slander, 353): "Lunacy is in England no defense to an action for slander or libel. Per Kelly, C. B., in Mordaunt v. Mordaunt, 39 L. J. Prob. and Mat. 59. In America, however, insanity at the time of speaking the words is considered a defense, 'where the derangement is great and notorious, so that the speaking the words could produce no effect on the hearers,' because then 'it is manifest no damage would be incurred.' But where the degree of insanity is slight, or not uniform, there evidence of it is only, admissible in mitigation of damages." Citing Dickinson v. Barber, 9 Mass. 218; Yeates v. Reed, 4 Black. 463; Horner v Marshall's Admx., 5 Munf. 466. The citation from Mordaunt v. Mordaunt is entirely obiter, and a mere casual remark in the course of the argument. The question was whether lunacy was a defense to an action of divorce, and counsel in arguing said a lunatic is liable to an action for fac representation, and Kelly, C. B., interrupted to say, "and also for a libel." This is the only authority cited to this doctrine in the text-books, and the only one we can anywhere find. In Dickinson v. Barber, 9 Mass. 225, evidence of the insanity of the defendant after the speaking of the words was held inadmissible. The court added that "they gave no opinion in this case how far, or to what degree, insanity was to be received as an excuse in an action for defamatory words. Where the derangement was great and notorious, so that the speaking the words could produce no effect on the hearers, it was manifest no damage would be incurred. But where the degree of insanity was slight, or not uniform, the slander might have its effect, and it would be for the jury to judge upon the evidence before them, and measure the damages accordingly." In Horner v. Marshall's Admx., 5 Munf. 466, it was held that proceedings on a judgment for slander may be perpetually enjoined, by proof that at the time of the speaking and of the judgment the defendant was insane or in a state of partial mental derangement on the subject to which the words related. It appeared that the plaintiff in the judgment had expressed an intention not to enforce it, but to hold it as security for good behavior. This element however does not appear to have influenced the decision. In Bryant v. Jackson, 6 Humph. 199, it was held that insanity is a good plea to an action for slander. This doctrine was not debated; the court said it" is not controverted." The question was whether the proof offered and rejected was sufficient to make out the insanity. On the authority of the Dickinson and Horner cases, it was briefly held in Yeates v. Reed, 4 Blackf. 463, that insanity may be shown in excuse or mitigation according to circumstances. In Gates v. Meredith, 7 Ind. 440, it was held competent to prove that the defendant's mind was so besotted by a long course of dissipation and his character so depraved, that no one would regard or believe what he said. The court said: "Slander must be malicious. An idiot, or lunatic, no matter from what cause he became so, cannot be guilty of malice. He may indulge the anger of the brute, but not the malice of one "who knows better." There is no carefully expressed consideration of the question in any of these cases, and no other authorities are cited. In the text-books on Slander and Libel there is little said on the subject. Mr. Townshend says, "insanity is a 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 Addison nor Underhill considers the point in his work on Torts. Dr. Ordronaux says (Jud. Aspects of Insanity, 333): "It is a well established principle that a lunatic is liable for a trespass or a tort, because the matter of discretion or free moral agency is not inquirable into in a civil action. Yet in re spect to torts to the reputation, as by oral or written slander, some special considerations are due to the state of mind of the party which may justly be offered in mitigation of damages. One of the earliest symptoms of an unbalanced mind is often found in an unjust suspicion of others, which by repeated meditation provokes an emotional excitement in its subject, disabling him. from speaking either calmly or justly of the one thus suspected. The thought of this person at once revolutionizes the judgment; the ideas habitually entertained concerning him crowd tumultuously forward, and as any violent thinking when accompanied by emotional fervor tends to break out into speech or even writing, a party may in such a condition utter defamatory words without any ulterior purpose than that of relieving the tension of his own thought." It Judge Cooley says (Torts, 103): "Legal malice certainly cannot be imputed to one who in law is incompetent to harbor an intent. would seem a monstrous absurdity, for instance, if one were held entitled to maintain an action for defamation of character for the thoughtless babbling of an insane person to his keepers, or for any wild communication he might send through the mail, or post upon the wall. There can be no tort in these cases, because the wrong lies in the intent, and an intent is an impossibility. The rules which preclude criminal responsibility are strictly applicable here, because there is an absence of the same necessary element. ment. And if in the case of defamatory publications, it be said that after all the requirement of malice as an element in the wrong is only nominal, still there can be no tort, because presumptively the utterances, or rather publications, which proceed from a diseased brain, cannot injure." The citation from the Mordaunt case illustrates how common law has frequently been made, and why it is so "flexible" and "elastic." A judge drops a remark in an oral opinion, or interjects one in an argument, having nothing to do with the case. Somebody notes it down; and afterward, when the case arises, to which it might apply, it is quoted as authority. Frequently it is bad law and bad sense, like the dictum in the Mordaunt case, but it may answer to hang a decision on until some strong judge arises, who will contest it and pronounce the contrary. An intelligent text-writer ought to know better than to set down and perpetuate what President Garfield called "the staggerings of the mind."-Alb. Law Journal. Blank Endorsement.-The contract entered into by a blank indorsement of a promissory note will receive such a construction as will give effect to the intentions of the parties, and parol evidence will be admitted to show and explain what liabilities were intended to be assumed at the time of the transaction. [Owings v. Baker, 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. S. Holmes, Hillsboro. T. W. Shreve, Martin's Ferry. Frank E. Ballard, Findlay. Grafton C. Kennedy, Dayton. Howard W. Luccock, Himbolton. Charles H. Masters, Bryan. C. C. Layman, Lucky, Wood County. Frank W. Harrington, Warren. W. E. Allen, New Straitsville. James O. Browder, Van Wert. Walter S. Mitchell, Mansfield. James J. Grant, Canton. Arlington G. Reynolds, Painesville. Paschal L. Moorman, Xenia. George U. Sharp, Elyria. S. A. Bowes, Medina. 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 has 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 materials or work, and not to rights of action on the part of the latter against the owner of the road. 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, if 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. the District Court of Hamilton County. WHITE, J. Error to A municipal corporation in making a street along a hillside, so excavated the ground in the street as to cause the land above to slide and injure the lot of the plaint 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 affirmed. Longworth, J., did not participate in the decision. 474. The Lake Shore and Michigan Southern Railway Company v. Milo Sharpe and Joshua M. Nettleton. Error 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 |
