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state officers from Detroit, we prefer to consider that question. We may assume that the Ohio officer was in some way responsible for bringing Morton to the Ohio state line, and thence returning him to the Ohio Penitentiary. There is no comity between the states for the return of an indicted or convicted person, consequently so long as Morton remained in Michigan he had a right to claim that state as an asylum. The officers in Michigan who were prosecuting him, might, so long as Morton remained in Michigan, have had a right to demand that he be held in Michigan for trial. A writ of habeas corpus therefore might be available to Michigan to test the right of the state of Ohio to Morton, but, when the officers of the state of Michigan, even at the suggestion of the officer of the state of Ohio, bring Morton to the state of Ohio, the question is not competent for Morton to raise as against the state of Ohio. Mahon v. Justice, 127 U. S. 700, 8 S. Ct. 1204, 32 L. Ed. 2S3; Pettibone v. Nichols, 203 U. S. 192, 27 S. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047.

When, therefore, the convict was transferred across the state line by the Michigan authorities, and delivered to the state of Ohio by the Michigan officers, he was within the jurisdiction of Ohio and subject to transfer to the Ohio Penitentiary.

Morton claims that at the time of his first release in Ohio he was willing to accept the conditional pardon, and agreed to go to Michigan and be tried there on the Michigan charge. Nevertheless his pardon in Ohio was a conditional one, and, notwithstanding the fact that he was transferred out of the state, he still was subject to the jurisdiction of the Ohio state officers, and subject to the parole laws of the state of Ohio and to the right of the Board of Clemency to retake him at any time. Morton having been brought into the state of Ohio, and the jurisdiction of the officers of the state of Ohio being asserted against him, his retention in the Ohio Penitentiary is according to the law of the state of Ohio, and his release upon the writ of habeas corpus must therefore be refused. Writ denied.

legal service thereof, cannot recover amount of judgment and attorneys' fees paid by him under policy requiring immediate written notice of claim and forwarding of summons, whether or not insurer was prejudiced.

2. Insurance 539 (5)-Condition of automobile liability policy for immediate notice of accident or claim and immediate forwarding of summons is of essence.

Condition of automobile liability insurance policy for immediate notice to insurer of any accident or claim growing out of it and immediate forwarding of summons or process served on insured to insurer is of essence of contract.

3. Contracts 143-Court cannot make, nor change conditions of, contracts because of personal notion of what good morals and fair dealing require.

Court is not privileged to make contracts for others, nor change conditions of contracts lawfully made, because of some personal notion of what good morals and fair dealing may require in particular case.

Williams, J., dissenting.

Action by Meyer Heller against the Standard Accident Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed. Judgment affirmed by Supreme Court. 160 N. E. 707.-[By Editorial Staff].

M. C. Harrison, of Cleveland, for plaintiff in error.

Dustin, McKeehan, Merrick, Arter & Stewart, of Cleveland, for defendant in error.

LLOYD, J. Plaintiff in error was plaintiff and the defendant in error defendant in the court of common pleas, and will be so referred to here.

The defendant had issued to plaintiff a policy of insurance indemnifying him, for a period of twelve months from March 20, 1921, against loss from liability for damages on account of bodily injuries accidentally sus tained by any persons by reason of the use by plaintiff of his automobile. On June 22, 1921, a Mrs. Yudelevitz was injured by plaintiff's automobile, which he was then driving. Immediate notice of this accident was given by plaintiff to defendant.

Nothing further happened until December

FERNEDING and KUNKLE, JJ., concur. 26, 1922, when Mrs. Yudelevitz commenced

HELLER v. STANDARD ACC. INS. CO. Court of Appeals of Ohio, Cuyahoga County. May 9, 1927.

1. Insurance 539 (5)-Insured, not forwarding summons to automobile liability insurer for five months, held not entitled to recover amount of judgment and attorneys' fees paid. Insured, not forwarding summons, in action for personal injuries caused by his automobile, to liability insurer until about five months after

an action against plaintiff in the court of common pleas of Cuyahoga county to recover damages in the sum of $10,000 for injuries claimed by her to have been so sustained. Summons was served in that action upon the plaintiff herein by leaving a copy thereof at his place of residence. At that time Mr. Heller was absent from the city of Cleveland, where he lived, not returning thereto until some time in the following February. Where he was, or why he was so absent, the facts in evidence do not disclose. His daughter, being ignorant of the fact that this action was for

(161 N.E.)

a claim protected by the policy of insurance in question, delivered the summons to a Mr. Glick, her father's personal attorney, requesting him to file an answer to the petition within the time mentioned in the summons. Mr. Glick was also unaware of the nature of the claim, except as disclosed by the petition, and, by obtaining from the court leave to plead, extended the time for answer to May 26, 1923.

Mr. Heller, upon his return to Cleveland in February, 1923, learned that "some papers" had been left at his home while he was absent, and that Mr. Glick was looking after the matter. He was taken sick about that time, and was confined to his house until the latter part of April, "and for one reason or another" it was not until May 14, 1923, that he and Mr. Glick "woke up to the realization" that the case in question was one covered by his policy of insurance with the defendant. Thereupon Mr. Heller notified the defendant of the answer day as extended by leave of court, and Mr. Glick, also on May 14, 1923, notified the defendant by letter of the pending action, requesting that it defend the same as provided in its policy of insurance issued to Mr. Heller, and on May 16, 1923, he mailed to defendant the summons and a copy of the petition in the action so brought by Mrs. Yudelevitz. On May 18th the defendant, by letters to Mr. Heller and Mr. Glick, called attention to the fact that

the summons had not been promptly delivered to defendant and that thereby its rights had been prejudiced, and on May 23d, by letter to plaintiff, formally disclaimed any liability under the policy in question, on the ground that plaintiff had failed to comply with the condition thereof requiring immediate notice to the defendant of the suit or claim, and immediate submission to its rep resentatives of the summons served upon

him.

Thereafter plaintiff personally, through his attorney, defended the action brought by Mrs. Yudelevitz, upon the trial of which she recovered a verdict and a judgment for $300, which plaintiff paid. He also paid to his attorney $400 for services in connection with that litigation. For the amount thus expended, plaintiff brought this action in the court of common pleas, and these proceedings in error are instituted to reverse the judgment entered therein in favor of defendant.

After counsel for plaintiff had made his opening statement to the jury, a juror was :withdrawn by consent, and the cause submitted to the court upon said statement of counsel, which, with certain exhibits, has been incorporated in the bill of exceptions as an agreed statement of facts, which, with the pleadings and transcript of the journal entries, constitute the record now before this

161 N.E.-23

court; no motion for a new trial having been filed in the court of common pleas.

The judgment entered by the court of common pleas recites "this cause came on to be heard and was submitted to the court on the pleadings and the evidence, and on consideration thereof the court finds that the plain; tiff is not entitled to the relief prayed for," and, having so found, the court dismissed the petition of the plaintiff and entered judgment in favor of defendant for costs.

The policy of insurance in question contained, among others, the following condition:

"F. The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable, to the company at its home office, Detroit, Michigan, or its duly authorized agent. He shall give like notice, with full particulars, of any claim made on account of such accident. If thereafter any suit is, brought against the assured, he shall immediately forward to the company every summons or other process served on him. The assured shall not voluntarily assume any liability, settle any claim, or incur any expense except at his own cost, or interfere in any negotiations for settlement or legal propreviously given in writing." ceeding without the consent of the company

Assuming that the facts having been so agreed upon are therefore not in dispute, and that a motion for a new trial was unneces

sary, and assuming also that what the Supreme Court says in Employers' Liability Assur. Corporation v. Roehm, 99 Ohio St. at "in a case of the character under investigapage 348, 124 N. E. 224, 7 A. L. R. 182, that tion, with its attendant circumstances, where the facts are not disputed, what is a sufficient compliance with the policy requirements" is a question of fact and not of law, is not applicable to the instant case, and that this court, therefore, is not limited to a consideration of the question of whether the finding of the trial court, a jury having been waived, is manifestly against the weight of the evidence, we will consider and determine the question here involved as one of law and not of fact.

[1] Unless, then, the admitted facts and circumstances excuse the delay in forwarding to defendant the summons, which admittedly had been served upon plaintiff in the manner provided by law, the condition of the insurance policy in question, just quoted, was thereby violated in at least two respects, because the summons served a double purpose. It served the purpose of notifying the plaintiff that Mrs. Yudelevitz was making a claim for her alleged injuries and that she was commencing an action to adjudicate and compel satisfaction thereof.

[2] Condition F of the policy provided for immediate notice to defendant of any accident, or of any claim made growing out of

any accident, and also that every summons or process served on plaintiff should immediately be forwarded to defendant.

cial to the defendant, and, therefore, in any event, the burden would rest upon the plaintiff to prove that no prejudice in fact resulted to the defendant from its violation by him. In this respect the record is silent, and therefore the case of Frank Parmelee Co. v. Ætna Life Ins. Co. (C. C. A.) 166 F. 741, 744, cited by plaintiff in his brief, is inapplicable. It is inapplicable, for the further reason that the conclusion in that regard there reached apparently is the personal, isolated, and not particularly well-considered conclusion of the judge writing the opinion, because the authorities cited by him in no respect support the contention so made.

[3] This court is satisfied to decide the question in the instant case upon the wellestablished principle of law that a court is not privileged to make contracts for others, nor in any wise to change the conditions of contracts lawfully made, because of some personal notion of what, in a particular case, good morals and fair dealing may require.

The contract of insurance in question was advisedly and understandingly made. Its terms are explicit and unqualified, and the parties are bound in law to abide thereby. The judgment of the court of common pleas is therefore affirmed.

As has been decided by this court in United States Casualty Co. v. Breese, 21 Ohio App. 521, 153 N. E. 206, and by the Supreme Court in the cases of Travelers' Ins. Co. v. Myers, & Co., 62 Ohio St. 529, 57 N. E. 458, 49 L. R. A. 760; Employers' Liability Assurance Corp. v. Roehm, 99 Ohio St. 343, 124 N. E. 223, 7 A. L. R. 182; and Stacey v. Fidelity & Casualty Co., 114 Ohio St. 633, 637, 151 N. E. 718-a stipulation such as this is of the essence of the contract in insurance of this kind. In these cases the reasons for this conclusion are given at length, and nothing would be gained by repeating them. If this were a case of an accident not previously reported or known to plaintiff, or, as in the accident insurance cases cited, a case where notice was required of the injury rather than of the accident, and no injury developed until some time after the accident, there would confront us a quite different question than that here presented. Here the accident was known to the plaintiff; notice thereof having immediately been given by him to the defendant as required by the policy. Therefore he was bound to know that a claim might be made thereafter by Mrs. Yudelevitz, and that, in all probability, an action would be commenced by her thereon. The condition in question of the policy under consideration contains no exceptions and no qualifications. The contract was voluntarily and understandingly entered into by plaintiff. No equities are here involved. It is merely a question of whether a contract so made is to be so construed by a court as to change its clearly intended purport and effect for the avowed and only purpose of relieving from the accepted obligations thereof one who admittedly has violated its clearly expressed Court of Appeals of Ohio, Hamilton County. conditions. In Farrell v. Merchants' Mut. Auto. Liability Ins. Co., 203 App. Div. 118, 196 N. Y. S. 383, it was held that an oral notice given over the telephone was not a compliance with a provision of an automobile liability policy requiring immediate written notice of an accident. How much less, then, was the forwarding of a summons approximately five months after legal service thereof had been made upon plaintiff a compliance with a stipulation requiring the immediate forwarding of the same?

If a solution of the question under consideration depended upon determining whether or not the defendant was prejudiced by the failure of plaintiff to comply with condition F of the policy, which obviously, as stated in the Breese Case, it does not, the writer is of the opinion that the inclusion in the policy of stipulation F in and of itself presumes that any violation thereof would be prejudi

Judgment affirmed.

RICHARDS, J., concurs.
WILLIAMS, J., dissents.

Judges of the Sixth Appellate District, sitting in place of Judges SULLIVAN, VICKERY, and LEVINE, of the Eighth Appellate

District.

LUCAS et al. v. J. H. GROSS MOTOR
CAR CO.

1. Contracts

Dec. 19, 1927.

310-Advertiser held not excused from payment for signboard space on theory that advertising company's voluntary bankruptcy petition breached contract.

One contracting to make monthly payment to advertising company for signboards carrying its advertisement, which advertising company agreed to keep in repair and repaint every six months, held not excused from contract on theory that advertising company by filing voluntary petition in bankruptcy disabled itself where boards were not destroyed or out of refrom performing contract and breached it, pair and were painted as per contract.

2 Assignments 19-"Personal contracts" are not assignable, but whether personality of party is material depends on parties' Intention.

"Personal contracts" are contracts in which personality of one of parties is material and are not assignable, but whether personality of one

(161 N.E.)

or both parties is material depends on intention of parties as shown by language used and nature of contract.

The purchasers sued the motor car company for $480, for unpaid installments of rent. The municipal court rendered judg

[Ed. Note. For other definitions, see Words ment for plaintiffs. Error was prosecuted to and Phrases, Personal Contract.]

3. Assignments 19-Advertiser's contract for signboard space held assignable by advertising company as against contention it was personal service contract.

as

Advertiser's contract for use of signboards held assignable by advertising company against contention it was personal service contract, in view of clause of contract providing for advertiser's payment to "you or your successors or assigns."

Action by Leo Lucas and others, partners doing business as King System, against the J. H. Gross Motor Car Company. Judgment for plaintiffs in Municipal Court and error was prosecuted to the Court of Common Pleas There the judgment of the Municipal Court was reversed, and plaintiffs bring error. Reversed and remanded with instructions.-[By Editorial Staff.]

Leo Weinberger, of Cincinnati, for plaintiffs in error.

the court of common pleas, which court reversed the judgment of the municipal court. This action is prosecuted to reverse the judgment of the court of common pleas.

[1] The motor car company contends that the King System, by filing a voluntary petition in bankruptcy, disabled itself from performing the contract, and breached it.

The King System agreed to keep the bulletins in repair and to repaint them every six months. It is not claimed that any bulletin boards were destroyed or out of repair, or that the bulletin boards were not painted as per contract. In argument, counsel failed to state that the Gross Motor Car Company was using property (bulletin boards) of the King System, and that it received what it agreed to pay for, to wit, advertising.

"was for personal service and not assigna[2, 3] It is contended that the contract

ble."

The rule by which it is determined whether or not a contract is for personal service is D. T. Hackett, of Cincinnati, for defendant stated in Starchroom Publishing Co. v. Threlin error.

CUSHING, J. On and after March 14, 1925, the King System, incorporated, owned bulletin boards in Hamilton county, Ohio, and Campbell and Kenton counties, Ky. On March 14 it entered into a contract with the J. H. Gross Motor Car Company to paint a number of its bulletin boards with the advertisement of the motor car company. The King System agreed to keep the boards in repair and to repaint them every six months. The motor car company was to pay a rental of $125 per month for twenty-four months.

Subsequently it was agreed that a bulletin board on the Dixie Highway was to be illuminated, and that three additional bulletin boards in Newport, Ky., were to be painted and used for advertising at an agreed rental. In April, 1926, the King System was adjudged a bankrupt in the District Court of the United States for the Eastern District of Kentucky.

On May 19, 1926, the trustee in bankruptcy was ordered to sell the property of the bankrupt, including the bulletin boards, leases, wall leases, wall boards, contracts, accounts receivable, etc. The trustee sold the property to Leo Lucas, Lewis Carroll, and George H. Lackner, partners doing business as the King System, for $10,500.

keld Engraving Co., 13 Ohio App. 281, 283:

"So-called personal contracts, or contracts in which the personality of one of the parties is material, are not assignable. Whether the personality of one or both parties is material depends upon the intention of the parties, as shown by the language which they have used, and upon the nature of the contract. 4 Page 1 Williston on Contracts, § 413; on Contracts (2d Ed.) §§ 2248-2251. See, also, American Smelting & Refining Co. v. Bunker Hill & Sullivan Mining & Concentrating Co. [D. C.] 248 F. 172, 184, 185; and Wooster v. Crane & Co., 73 N. J. Eq. 22 [66 A. 1093]."

The contract under consideration provided:

"We agree to pay you or your successors or assigns, each month the amount above set opposite each bulletin for a period of 24 months from the average date of the completion of them all."

The clause in the contract providing for payment "to your successors or assigns" divested the contract of the elements of personal service, under the rule above stated.

The judgment of the court of common pleas will be reversed, and the cause will be remanded to that court with instructions to affirm the judgment of the municipal court. Judgment reversed.

HAMILTON, P. J., and MILLS, J., concur.

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

REMBRANDT v. CITY OF CLEVELAND. Court of Appeals of Ohio, Cuyahoga County. Oct. 31, 1927.

Criminal law 393 (1)-Ordinance requiring driver of vehicle involved in accident to make full report to police held unconstitutional as compelling self-incrimination (Const. Ohio, art. 1, § 10; Const. U. S. Amend. 5).

Ordinance of city of Cleveland requiring driver or operator of vehicle involved in accident, under penalty of fine or imprisonment, to make full report to police of accident, held, in view of sections 2516, 2788, of City Ordinances to be unconstitutional because in violation of Const. Ohio, art. 1, § 10, and Const. U. S. Amend. 5, providing that no person shall be compelled to be a witness against himself in a criminal case.

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SULLIVAN, P. J. This cause comes into this court on error from the municipal court of the city of Cleveland, where the plaintiff in error, Samuel Rembrandt, was found guilty, at the April term of said court, 1927, of failing and refusing to make a police report under section 2516 of the city ordinances of the city of Cleveland, a portion of which we quote as follows:

"Every person driving or operating

a vehicle within the city, involved in an accident which caused injury to any person, or which results in a vehicle becoming so disabled as to be incapable of being propelled in its usual manner, shall give immediate notice and make full report thereof to the police department of Cleveland.

Upon trial a conviction was had, and under the ordinances fixing the penalty for refusal to obey the provisions of this ordinance, he was fined.

The constitutionality of the ordinance is attacked on the ground that it is in contravention of article V of the Amendments to the Constitution of the United States, which provides that no person shall be compelled in any criminal case to be a witness against himself, and of section 10 of article I of the Bill of Rights of the Constitution of Ohio, which provides that no person shall be compelled in any criminal cause to be a witness against himself. Section 2788 of the City Ordinances makes it a criminal offense to make a false report, and the effect of section 2516, it is claimed, is that any person included in the ordinance who complies with its terms in

making a full report may convict himself of crime.

The ordinance itself further provides that: "If the driver or operator involved is so incapacitated as to be unable to make such report, it shall be the duty of every other occupant of such vehicle to see that such report is made."

The purpose of the ordinance in question is founded in good faith, but there is no question that the report required to be made may involve the person making it in a criminal offense, including homicide. The penalties for the offenses growing out of a violation of the ordinance range from fines to imprisonment, and may mean, eventually, an indictment, conviction, and sentence for manslaughter.

In the case of James v. City of Cleveland, 162 N. E. 617, decided by this court June 25, 1923, in the opinion of the court, written by Vickery, P. J., this very ordinance in the case at bar was held to be unconstitutional on the authorities laid down in Henry v. City of Cleveland, 27 O. C. A. 321, 326, in an able opinion by Lieghley, J.; Horton v. State, 85 Ohio St. 13, 96 N. E. 797, 39 L. R. A. (N. S.) 423, Ann. Cas. 1913B, 90; Du Brul v. State, 80 Ohio St. 52, 87 N. E. 837, and 'Dillingham v. State, 5 Ohio St. 280.

In the Henry Case, supra, the subject of the ordinance related to assistance that might be given the driver of the vehicle which has been in collision with another person or property upon any street or public highway within the municipality, and to stopping and giving the

name and address of the owner of the vehicle as well as rendering assistance, and it was held that this was invalid because of uncertainty and indefiniteness, or, in other words, because there was a failure to fix the standard as to what should constitute reasonable assistance. We find the same infirmity, by analogy of reasoning, in the present ordinance, and, in addition thereto, it is still our unanimous judgment that the section in question in the instant case is unconstitutional because it is in violation of the sections of the Constitution of the United States and the Bill of Rights in the Constitution of Ohio, as cited supra.

The ordinance provides, among other things, that a full report of the accident shall be made to the police department of the city of Cleveland, upon blanks furnished by the department, upon application. This means that, under compulsion, the operator of the vehicle must answer all questions concerning the details of the accident, in writing, to which he obviously must attach his signature, and inevitably these answers in cases of collision would involve the question of penalties in criminal cases, ranging, as before noted, from fines to imprisonment in the penitentiary, for a felony. Thus it is plain that the section in question is unconstitutional, and our holding is based upon what is appar

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