(149 N.E.)

dental to the public right, it ceased when the public right ceased, and the respondent has been exercising its rights in the street against the authority of the state and of the municipality.

MARSHALL, C. J., and JONES, MATTHIAS, DAY, ALLEN, KINKADE, and ROBINSON, JJ., concur.

The respondent further contended that, inasmuch as it has been operating under rec- STATE ex rel. HANSON v. CALDWELL, Reognition and approval of the Public Utilities ceiver, et al. (No. 18973.)*

Commission, and the Public Utilities Com-(Supreme Court of Ohio. April 21, 1925.) mission has made no order requiring it to abandon its franchise rights, it cannot be ousted under the laws of this state.

We are not impressed with the proposition that the approval and recognition of the Public Utilities Commission constitutes a judgment as to the legality of the position occupied by the respondent. If a corporation is doing business as a public utility within a municipality, without authority from the state and the municipality, the mere fact that it is recognized by a Commission which is itself a creature of the state will not validate its existence, nor deprive this court of its constitutional jurisdiction in quo war

ranto.

The respondent further contends that since February 1, 1892, the council of the village has recognized the right of the respondent and its predecessors in interest, and is now estopped to deny these rights. Upon a thorough consideration of the record we think that no estoppel has been established here. The question of the perpetuity of the franchise was never directly raised in any prior court proceedings between the village and the respondent. Moreover, the fact that the council of Orrville repeatedly gave to the successors of the original grantees 5-year contracts for commercial lighting in which it fixed the price to be paid therefor is inconsistent with recognition upon its part that the franchise granted in the original ordinance was perpetual. Accordingly this con⚫tention also will be overruled.

For the above reasons the decision of the Court of Appeals will be affirmed.

Judgment affirmed.

MARSHALL, C. J., and MATTHIAS, DAY, KINKADE, and ROBINSON, JJ., concur.

KNUDSON v. STATE. (No. 18985.) (Supreme Court of Ohio. May 5, 1925.) Error to Court of Appeals, Wood County. Benjamin F. James, of Bowling Green, for plaintiff in error.

Ray D. Avery, Pros. Atty., of Bowling Green, for the State.

PER CURIAM. It is ordered and adjudged that said petition in error be and the same hereby is dismissed, for the reason no debatable constitutional question is involved in said cause. Petition in error dismissed.

Error to Court of Appeals, Lucas County. James Harrington Boyd, of Toledo, for plaintiff in error.

Fraser, Hiett & Wall and Garrison & Phillips, all of Toledo, for defendants in error.

C. C. Crabbe, Atty. Gen., and John W. Brick-state of Ohio, from the funds coming into its er, of Columbus, for defendant in error.

(149 N.E.)

O'DWYER et al., Deputy State Supervisors and Inspectors of Elections, et al. v. STATE ex rel. DEAN. O'DWYER et al., Deputy State Supervisors and Inspectors of Elections, et al. v. STATE ex rel. KELLER. O'DWYER et al., Deputy State Supervisors and Inspectors of Elections, et al. v. STATE ex rel. ROTH. O'DWYER et al., Deputy State Supervisors and Inspectors of Elections, et al. v. STATE ex rel. NOWAK. STATE ex rel. LILES v. O'DWYER et al., Deputy State Supervisors and Inspectors of Elections, et al. (Nos. 18720-18723, 18728.)

(Supreme Court of Ohio. Feb. 3, 1925.) Error to Court of Appeals, Lucas County. Hackett & Lynch, Scott Stahl, and Harry Commager, all of Toledo, for plaintiffs in error in Nos. 18720, 18721, 18722, 18723, and for defendants in error in No. 18728.

Alonzo G. Duer, of Toledo, for plaintiff in error in No. 18728.

S. S. Burtsfield, of Toledo, for defendant in error in No. 18720.

Miller & Brady, of Toledo, for defendant in error in No. 18721.

H. Joe Cannon, of Toledo, for defendant in error in No. 18722.

John E. Connell, of Toledo, for defendant in error in No. 18723.

PER CURIAM. It appearing to the court that heretofore, on the day of September, 1924, an order was made by the concurrence of Judges ROBINSON, MATTHIAS, DAY, and CONN, dismissing said error proceedings, upon the authority of Miner v. Witt, 82 Ohio St. 237, 92 N. E. 21, from which order and judgment of dismissal MARSHALL, Chief Justice, and

JONES and ALLEN, Justices, dissented, and it further appearing that said order was through inadvertence not entered at said time, the court now orders that this order be entered by the clerk of this court upon the journal of this court as of the date September 30, 1924, and of the January, 1924, term of said court. Dismissed.

2. Appeal and error 843 (2)-Reviewing tribunal need not determine whether release was procured by duress, where verdict sustainable on theory that release was executed without consideration.

In suit on automobile fire policy, reviewing tribunal need not determine whether release of insurer from liability was procured by duress, where verdict could be sustained on theory that release was executed without consideration.

3. Trial 295(1)-All instructions must be considered in determining whether there is any reversible error in given instruction.

In determining whether there is any reversible error in giving of an instruction, all other instructions given on that subject must be considered.

4. Trial 296 (2)—Instruction on duress in procuring release held not erroneous, in view of other instructions on that subject.

In suit on automobile fire insurance policy, with defense that plaintiff had released his cause of action, instruction that release would not be valid if plaintiff was oppressed by defendant's agent or was induced by threats regarding his personal liberty to sign the release held not erroneous, in view of other instructions on the subject.

5. Appeal and error 1064(1)—Any error in instruction relating to duress in procuring release held harmless.

In suit on automobile fire insurance policy with defense that plaintiff had released his cause of action, any error in instruction on duress in procuring release, in that threat of prosecution does not constitute duress without a further threat of immediate imprisonment, held harmless, where, if any threat was made, it was a threat of immediate imprisonment. 6. Trial 234 (7), 237(1). Instruction held not objectionable as being on burden of proof or preponderance of evidence.

In action on automobile fire policy, instruction that plaintiff was entitled to recover if at time of execution of policy and fire he was owner of automobile and damage thereto was not caused by any deliberate act or conduct on his part held not objectionable as being on burden of proof or preponderance of evidence.

7. Appeal and error 216(3) - Incomplete

ness of instruction not ground for complaint, where defendant tendered no instruction.

In action on automobile fire insurance policy, instruction relating to plaintiff's confession

STANDARD AUTO INS. ASS'N v. REESE. that he voluntarily and willfully set fire to

(No. 12067.)

automobile held not ground for complaint, in that it did not instruct as to effect of confes

(Appellate Court of Indiana, in Banc. Oct. 15, sion, if jury found it was not obtained by du

1925.)

1. Release -"Release" defined.

A "release" is the act or writing by which some claim or interest is surrendered to another person.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Release.]

ress. where defendant tendered no instruction on that subject.

8. Appeal and error 1064(1)—Any error in instruction on measure of damages held harmless.

In action on automobile fire policy, any error in instruction that plaintiff's damages were to be determined by difference between value of automobile immediately before and after the fire

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

Automobile fire policy held not void, if in-sideration." sured fraudulently stated that mortgage thereon had been paid, where policy contained clause making it payable to mortgagee as his interest might appear and same was not paid until after the fire, and insurer in issuing policy did not rely on insured's statement.

(149 N.E.)

"No. 11. Duress is that degree of constraint | itself, and cannot be aided by reference to or danger, either actually inflicted or threaten- other instructions; that it does not require ed and impending which is sufficient in severity appellee to prove the facts stated by a preor in apprehension to overcome the mind and ponderance of the evidence; and that it will of the person upon whom it is exercised, placed the burden of proof upon appellant to thereby causing him to do and perform some act which he would not otherwise have perform- overcome the plea of duress; and that the ed and which act is therefore deemed in law not admission of appellee that he executed the to be his voluntary act. If defendant did in release was conclusive as to its execution; fact, by duress within the meaning of this in- and that the burden of proving duress was struction, obtain the signing and delivery of the on appellee and not appellant. The instrucalleged release, such release would not be bind- tion is not subject to any of the objections ing upon plaintiff, even though it were executed urged. It had no bearing on the burden of with valid consideration. proof or on the preponderance of the evidence.

"No. 12. Duress, to vitiate and render void a contract, must not only be of such nature as to overcome the will and mind of the person upon whom it is exercised, but must also actually accomplish such result. If, notwithstanding the exercise of duress, an instrument still is the free act of the party upon whom the duress is exercised, such act will not be void by reason of such duress. In other words, the duress to render void an otherwise valid agreement must have been the procuring cause of the agreement."

Considering these 'instructions, said instruction No. 1 is not subject to the objections argued.

Instruction No. 17, given by the court upon its own motion, after calling the attention of the jury to a statement signed by appellee purporting to be a confession that he voluntarily and willfully set fire to the automobile, instructed them that said statement was admitted in evidence as an admission; that, if the jury found that it was executed by reason of duress, it could not be regarded as a voluntary admission; that such statement should be considered in the light of the circumstances surrounding its execution and given such weight as the jury deemed it entitled to in view of all the other circumstances in the case, and, if found that it had been executed under and by reason of duress, they should disregard it.

[5] Appellant also objects to the giving of instruction No. 2, for the reason that the threat of prosecution does not constitute duress without a further threat of immediate imprisonment; that the said instruction was not relevant to the issues; and that there was no evidence of any threat to prosecute - the plaintiff. While the instruction may be objectionable for the first reason urged, such defect alone would not be sufficient reason for reversal. Appellee testified that he was threatened with immediate imprisonment. Appellant's witness, who was charged with making the threat, denied having made any threat. The only witnesses who testified on this particular subject were appellee and the one who it is claimed made the threat. If any threat was made, it was a threat of immediate imprisonment, and the instruction under consideration, if erroneous, was harm-lant was not liable if appellee voluntarily set less.

Complaint is also made of the giving of instruction No. 6 tendered by appellee, wherein the court told the jury that, if it found from the evidence that appellee at the time of the execution of the policy and at the time of the fire was the owner of the automobile in question, and that the damage to the automobile was not caused by or through any deliberate act or conduct on his part intended by him to cause its destruction, it should then find that he was entitled to recover its value at the time of its destruction or damage, unless the jury should find that he thereafter released appellant by a valid release founded on a good consideration.

[6] Appellant says that the court by this instruction undertook to narrate all the facts necessary for a recovery by appellee; that such an instruction must be complete within

[7] The objections urged to this instruction are that it told the jurors they should consider the confession in the light of the circumstances surrounding its execution, and give it such weight as they deemed it entitled to in view of all the "other facts and circumstances" in the case. That it made it optional with the jury to ignore the admission, though it should be found that such admission had not been obtained by duress. Appellant contends that, if the jury had found the admission or confession was not obtained by duress, appellee could not recover no matter what facts or circumstances existed, since the policy provided that appel

fire to the automobile. The instruction was correct in so far as it went. If appellant desired an instruction as to the effect of the confession in case the jury found it was not obtained by duress, it should have tendered an instruction on that subject.

[8] Instruction No. 21, of which complaint is made, related to the measure of damages. The court by this instruction told the jury, in case they found for appellee, the damages should be determined by the difference between the value of the automobile immediately before and immediately after the fire. Appellant says the giving of this instruction was error for the reason that difference between the market value before and after was the proper measure of damages. All of the evidence introduced concerning the value of the automobile related to its market value before and after the fire. This being true,