author: Hornbeck, J.

text:
    Brunner, d. b. a. Brunner Meat Packing, et al., Appellees, v. Rhodes, Mayor, et al., Appellants.

      (No. 4730
    Decided March 23, 1953.)

      Mr. Gollis Gundy Lane, for appellees.

      Mr. Richard W. Gordon, city attorney, Mr. Hugh K. Martin, Mr. J. Raymond Snowden and Mr. Wayne S. Gerber, for appellants.
   Hornbeck, J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court in favor of the plaintiffs.

The issues are drawn on an amended petition, the answer thereto, a supplemental petition, a second supplemental petition, a joint answer thereto, a reply and a supplemental reply. The supplemental pleadings were made necessary because of certain regulations of the defendants enacted subsequent to the filing of the amended petition.

By their pleadings, plaintiffs seek a declaratory judgment defining their rights under certain regulations providing for the inspection of slaughter houses, meat, and meat products. The plaintiffs are individuals, partnerships and corporations engaged in meat packing, the slaughter of meat animals, and the distribution and sale of the meat. All of them are affected and are required to pay the fees provided by the regulations.

The plaintiffs question the validity and, therefore, the enforceability of the several regulations involved sofar as they require payment of permit and inspection fees by plaintiffs. The contentions of the plaintiffs are set forth under four headings:

(1) The purported regulations of the board of health were not properly adopted and are, therefore, invalid.

(2) The board of health is without authority to impose fees for inspection which they have attempted to impose.

(3) The regulations generally are unreasonable, discriminatory, and usurp the legislative function.

(4) Plaintiffs are entitled to recover meat inspection fees paid by them.

Four regulations are involved. The first was dated March 31, 1947, and became effective May 1, 1947; the second was dated November 30, 1947, and became effective January 1, 1949; the third was dated March 10, 1950, and became effective on and after May 1, 1950; and the fourth was dated April 27, 1950, and became effective May 1,1950.

It is urged that the first regulation is invalid because it was not read on three separate occasions nor was the reading on three separate occasions dispensed with by a three-fourths vote, and that it was not properly enacted as an emergency measure.

The second regulation is claimed to be ineffective because it was not read on three separate occasions nor was there any waiver of such requisite. It was not published and its purported effective date is contrary to the statute.

The third regulation is asserted to be invalid because it was not published and, although an emergency was claimed to exist in the preamble, there is no stating of an emergency or reasons therefor in a separate section and it purports to contain an effective date which was contrary to the legally effective date.

The fourth regulation is questioned in that, although an attempt was made to declare an emergency in section 26 of the regulation, no reasons were declared or set forth for the emergency. There was no publication, and it purported to be effective at a date which was contrary to law.

The authority of the defendant board of health to adopt orders and regulations and the procedure to be followed is set out in Section 4413, General Code:

“The board of health of a city may make such orders and regulations as it deems necessary for its own government, for the public. health, the prevention or restriction of disease * * *. Orders and regulations not for the government of the board, but intended for the general public shall be adopted, advertised, recorded and certified as are ordinances of municipalities * * *. Provided, however, that in cases of emergency caused by epidemic of contagious or infectious diseases, or conditions or events endangering the public health, such boards may declare such orders and regulations to be emergency measures, and such orders and regulations shall become immediately effective without such advertising, recording and certifying.”

It thus becomes necessary to determine how ordinances are adopted by municipalities as contemplated by Section 4413, General Code. This procedure is found in Section 4224, General Code, which, so far as pertinent, provides:

“The action of council shall be by ordinance or resolution, and on the passage of each ordinance or resolution the vote shall be taken by ‘yeas’ and ‘nays’ and entered upon the journal * * *. No * * * ordinance * * * of a general or permanent nature, or granting a franchise, or creating a right, or involving the ex-expenditure of money * * * shall be passed, unless it has been fully and distinctly read on three different days, and with respect to any such * * * ordinance * * * there shall be no authority to dispense with this rule, except by a three-fourths vote of all members elected thereto, taken by yeas and nays, on each * * * ordinance, and entered on the journal. No ordinance shall be passed by council without the concurrence of a majority of all members elected thereto.”

Provision for the adoption of emergency ordinances, in so far as pertinent, is found in Section 4227-3, General Code:

“ * * * Emergency ordinances or measures necessary for the immediate preservation of the public * * * health * * * shall go into immediate effect. Such emergency ordinances * * * must, upon a yea and nay vote, receive the vote of two-thirds of all the members elected to the council or other body corresponding to the council of such, municipal corporation, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure.”

There is no dispute that in the enactment of a regulation of the board of health other than an emergency regulation, the procedural requirements of Section 4224, General Code, must be followed, but it is urged by the defendants that the proviso in Section 4413, General Code, exempts the board from the observance of the procedural requirements of that part of the section preceding the proviso.

The first mention of emergency ordinances is found in 102 Ohio Laws, 521, enacted March 31, 1911. The emergency provision as now found in Section 4227-3, General Code, was enacted as an amendment to 102 Ohio Laws, 521, and became effective April 28, 1913. The proviso in Section 4413, General Code, is first found in the Hughes Act (108 Ohio Laws, Pt. 1, 236, 248, effective May 12, 1919), and later in the Griswold Act (108 Ohio Laws, Pt. 2, 1092, effective January 2, 1920). Thus, when the emergency proviso was carried into Section 4413, General Code, the Legislature acted with full appreciation of the emergency requirements as to the enactment of ordinances of municipalities, which legislation had then been effective for more than six years.

It will be noted that if the board would observe the-requirements of the proviso in Section 4413, General Code, in enacting emergency legislation, it thereby would avoid the necessity of advertising, recording and certifying the regulation, but there is still left in the language of the earlier part of the section the obligation that regulations intended for the general public shall “be adopted as are ordinances.”

The emergency provision of Section 4413, General Code, is a part of the general enactment investing the board with authority to make regulations and defining procedure, mainly by reference. Tbe proviso in this section is silent as to procedural requirements.

It was held in Goodman v. City of Youngstown, 24 Ohio Law Abs., 696, with reference to the enactment of a city ordinance:

“The mere statement that the ordinance is necessary for the preservation of the public peace, health and safety is but a conclusion of the council, without the statement of any reason therefor.”

See, also, Maloney v. Gutelius, 30 Ohio Law Abs., 432, 2 Ohio Supp., 230.

Notwithstanding this holding, we believe that if either of the reasons authorizing an emergency regulation, or facts which require the conclusion that one of these reasons exists is found by the board of health, it will meet the requirements of the proviso in Section 4413, General Code. These conditions are either that an emergency exists which is caused by an epidemic of contagious or infectious diseases or by conditions or events endangering the public health. Observance of this requirement by the board will preclude the court from questioning the necessity that the regulation go into immediate effect. Holcomb, Auditor of City of Massillon, v. State, ex rel. Coxey, Sr., 126 Ohio St., 496, 186 N. E., 99, paragraph three of the syllabus.

Let us examine the various ordinances in the light of the construction of Section 4413, General Code, which we have heretofore indicated. The first regulation, dated March 31, 1947, was stated to be effective May 1,1947. One of the prime purposes of emergency legislation is that there is necessity that it become effective immediately. It was inconsistent with the emergency feature of .the regulation to fix its effective date more than a month after its enactment. However, if it was an emergency, it may be held to have been effective when properly enacted.

It is urged by the defendants that this regulation was properly enacted as ordinary legislation in that there was a compliance with the obligation that it be read on three different days and that it be published. The reading on three different days was mandatory to the enactment of an ordinary regulation. Campbell v. City of Cincinnati, 49 Ohio St., 463, 31 N. E., 606. But it is contended that compliance with the requirement as to the readings does not have to be entered on the record of the board. With this we agree. It is further claimed that proof of these readings is found in the stipulation. With this contention we cannot agree. The most that can be inferred from the stipulation is that the board had it under consideration and probably discussed it at three meetings but this is far from the requisite proof that it was read in its entirety at each and every one of these meetings. Proof of the readings of the regulation Avas susceptible of direct evidence which, it Avould seem, may have been forthcoming from some member or the secretary of the board, if it Avere a fact. The effective date of the regulation cannot be inferred from the stipulation as to the publication, nor does the record of the board show any Amte to dispense with the readings- of the regulation.

This regulation recites the reasons for the emergency and indirectly requires the conclusion that conditions endangering the public health exist, and it is declared to be an emergency regulation. It received the vote of all but one of the members of the board. We find that this regulation was procedurally valid.'

The second regulation, dated November 30, 1948, does not purport to be an emergency measure nor Avas it adopted in the manner required for a regulation other than an emergency. This regulation differed from the first in that it fixed a minimum inspection fee of three dollars.

The third regulation, dated March 10, 1950, was procedurally valid for the same reasons as the regulation of March 31, 1947.

The fourth regulation, dated April 27, 1950, is invalid. It does not meet the requirements of an emergency measure and was not published.

The second contention of plaintiffs is that the board of health was without authority to impose fees for inspection as provided in the regulations.

This contention is directed to that part of the regulations which impose upon packers and slaughterers of meat a fee for the services to be rendered in the inspection of their slaughter houses and the animals before and after killing.

The first regulation fixed the fees for inspection at 35 cents for each carcass of cattle and 15 cents for each carcass of other animals. The second regulation fixed the minimum fee for inspection at three dollars. Subsequent regulations reduced the charges for each carcass of cattle inspected to 25 cents and other animals to 10 cents.

It is the claim of plaintiffs that the extent to which the board may charge inspection fees is found in Section 4459, General Code, and that it has no authority to require payment by way of inspection fees from the plaintiffs upon any other theory.

Section 4459, General Code, in part, provides:

“The Board of Health shall keep for public inspection a record of the names, residences and places of business of all persons engaged in the sale of # * * meat, and may require permits, after inspection, to vend * * * meat to be renewed semi-annually, for which a charge of not more than 50 cents may be made.” (Emphasis ours.)

The fee herein authorized is a permit fee, and that part of the section which we have italicized is convincing that it was not intended to include inspection fees. Manifestly, the cost of such services would be so greatly in excess of one dollar per year as to make the payment of snch sum entirely inadequate to cover the expense of inspection of carcasses of animals before and after slaughter, or of meat preparatory to retailing it to the consumer.

Much has been said pro and con as to the public character of the services rendered under the provisions of the regulations. It is true that they are and could be considered as of a public character for the purposes of raising the funds with which to pay for the services to be rendered by the terms of the regulations, but that fact does not preclude the conclusion that persons engaged in the slaughtering or vending of meat receive by inspection a service over and beyond that which inures to the benefit of the general public. This fact was recognized and inspection fees required to be paid by slaughtering establishments in the city of Dayton by a municipal ordinance, enactment of which was held to be within the police power of the city, in City of Dayton v. Jacobs, 120 Ohio St., 225, 165 N. E., 844.

The legislation under consideration in the Jacobs case was a municipal ordinance and does not reach or determine the question here presented, namely, the power of the board of health by regulation to exact inspection fees from slaughterers. The Jacobs case was decided almost 10 years after the enactment of the Hughes and Griswold Acts. In the Jacobs case, the court disposed of the contention also that the fee there prescribed was a tax and held that it was but an inspection fee intended to produce sufficient return to take care of the reasonable expenses of the inspection provided in the ordinance. The regulations here under immediate consideration were expressly designed to accomplish that purpose, but the Jacobs case affords no support for the authority of the board of health to fix and collect inspection fees.

What power then has the board of health under the applicable provisions of the Code? It is basic that the board of health, being a creature of statute, has only such powers as are expressly conferred upon it and those which may be fairly implied from the express powers granted. State, ex rel. Hunt v. Hildebrant, Secy. of State, 93 Ohio St., 1, 112 N. E., 138, affirmed, 241 U. S., 565, 60 L. Ed., 1172, 36 S. Ct., 708; State, ex rel. Clark, v. Cook, Aud., 103 Ohio St., 465, 134 N. E., 655. A fair and reasonable doubt as to the existence of the power to enact an ordinance should be resolved against the city. Ergo, the same rule is applicable to a Board of Health. 62 Corpus Juris Secundum, 788.

Section 4458, General Code, provides:

“The board of health may appoint, define their duties and fix the compensation of, such number of inspectors of dairies, slaughter houses * * * meat * * * and such other persons as is necessary to carry out the provisions of this chapter.”

Were there no other provision of the Code than that to which we have just referred it might with some plausibility be urged that the board, having been given the power to name inspectors of slaughter houses and of meat, would have the implied authority to implement these powers by a regulation which would finance such services. But the same act which includes Section 4458, General Code, also includes Section 4451, General Code, which provides:

“When expenses are incurred by the board of health under the provisions of this chapter, upon application and certificate from such board, the council shall pass the necessary appropriation ordinances to pay the expenses so incurred and certified. * * #.” (Emphasis ours.) •

Many appointments are authorized to be made in the chapter under the heading board of health, among which are health commissioner, public health nurses, clerks, other persons and sanitary officers.

In State, ex rel. Miller, v. Council of Massillon, 2 C. C. (N. S.), 167, 14 C. D., 249, the salary of a health officer appointed by the board of health was held to be “expense incurred” under Section 2140, Revised Statutes, now Section 4451, General Code. This latter section was not affected by the Hughes and Griswold Acts. The appointment of inspectors for slaughter houses which were necessary to effectuate the regulations here under consideration may well be held to be “expenses incurred.” This obligation of the city council to enact the necessary ordinances to produce the money to pay the expenses incurred by the board of health is almost as old as the legislation creating boards of health.

In 66 Ohio Laws, 200 et seq., enacted in 1869, Section 325 of the Act provides:

“Where expenses shall be incurred by the board of health, under the provisions of this act, it shall be the duty of the council, upon application and certificate from said board of health, to pass the necessary appropriating ordinances to pay the expenses so incurred and certified.” (Emphasis ours.)

This act did not provide for the appointment of inspectors of slaughter houses and meat but did authorize the appointment of many other officers. On April 20, 1874 (71 Ohio Laws, 158, 160), a similar provision as to the payment of expenses by appropriation of council is found and, also, in this act in Section 318, page 160, the board of health is given authority to name sanitary officers, inspectors of milk and meat, market masters, provides for inspection of dairies, including the cows, cow stables, milk houses and milk vessels, the owners of which shall offer for sale milk within the corporate limits of the city. This legislation did not have application to cities of the first grade of first class but it does disclose the legislative purpose as to the source of payment for expenses incurred by boards of health of other cities.

In 95 Ohio Laws, 421 et seq., effective May 7, 1902, is found a comprehensive act treating the subject of health. Therein, probably for the first time, is a section (Section 2139, page 433) authorizing the board of health to appoint inspectors of slaughter houses along with other inspectors, the appointment of which had theretofore been authorized. It is in this same section, and as a part of it, that provision is made for the issuance of semiannual permits as now provided by Section 4459, General Code. It is significant that in that act the words, “after inspection,” as now found in Section 4459, General Code, do not appear. Section 2138, page 433 of that act provides also for the payment of expenses incurred by the board of health by appropriation ordinances enacted by the council. There clearly runs through all of this health legislation an intendment that the expenses incurred by boards of health of cities in carrying out their delegated duties shall be met by action of the council. This specific obligation being enjoined upon the council, it follows that the board of health has no implied power to raise such funds by collection of permit fees. This conclusion is further heightened by the Hughes and Griswold Acts, creating city health districts and general health districts.

The Hughes and Griswold Acts, creating these districts (Sections 1261-16 to 1261-43, General Code), set forth complete and comprehensive procedure controlling the fiscal policy of the general health districts but left the municipal health districts, in such matters, subject to the law relating to boards of health for municipalities. Sections 4404 to 4476, inclusive, General Code, which sections, as we have heretofore indicated, though amended by the Hughes and Griswold Acts, in substantially the same form had long antedated these acts. It is of interest to note that in the sections relating to health districts, Sections 1261-16 to 1261-43, inclusive, General Code, but one, namely, Section 1261-16, General Code, has any application to a city health district.

It is inferable that, unless the letter of the statutes controlling the respective health districts requires a different construction, it would be the purpose of the state legislation that like procedure be followed in financing the public services which both health districts are authorized and required to perform. Especially is this true inasmuch as the Hughes and Griswold Acts made the health districts which they created agencies of the state government. State, ex rel. Mowrer, v. Underwood, et al., Civil Service Commission of the City of Akron, 137 Ohio St., 1, 27 N. E. (2d), 773.

In the provisions relating to general health districts there is a new section (Section 1261-40, General Code), which provides for an annual estimate of current expenses by the board of health of such districts. This estimate is to be made annually on or before the first Monday in April for the year beginning the first day of January next ensuing, and is to be itemised and certified to the county auditor and by him submitted to the budget commission. This provision requiring an annual budget of the expenses by the board of health of a general district, although much more detailed than Section 4451, Genera! Code, is, in our judgment, practically the same in purpose and is convincing that it was the intent of the legislation that the expenses of neither municipal nor general health districts should be raised by them but should be referred to the council and the budget commissioners respectively for allowance. Similar provision is made in Section 1261-40, General Code, where a general health district has been united with a city health district located therein.

It is urged by defendants that the provision of Section 4451, General Code, that the council shall pass the necessary appropriation ordinances to pay expenses incurred by the board upon “application” and “certificate ’ ’ from the board, implies that there may be expenses incurred other than those to be certified. This language, heretofore italicized, has been employed throughout practically all the health legislation. We are of the opinion that it is the intendment of the statute that all expenses incurred by the city board of health, unless otherwise expressly provided, shall be paid by appropriation ordinances of the city council, and that such expenses, for the purpose of certainty, are required to-be certified.

Several courts of the state have had questions under consideration similar, at least, to the one which we are now considering and have resolved them as we have determined the issue here. These cases are Spangler, d. b. a. Pure Milk Dairy, v. Teeple (unreported), case No. 32233, Common Pleas Court of Wood County, opinion by Judge Sloether; Prudential Cooperative Realty Co. v. City of Youngstown, 118 Ohio St., 204, 160 N. E., 695, and Judge Rutherford in this case in the Common Pleas Court.

Upon the third contention of plaintiffs that the regulations generally are unreasonable and discriminatory, we find against them.

The fourth contention is that the plaintiffs are entitled to recover meat inspection fees paid by them. This claim is met by the defendants with the charge that the fees were paid voluntarily. They cite Ratter- man, Treas., v. American Express Co., 49 Ohio St., 608, 32 N. E., 754; City of Toledo v. Buechele, 19 C. C., 127, 10 C. D., 280; State, ex rel. Pulscamp, v. Bd. of County Commissioners, 119 Ohio St., 504, 164 N. E., 755; Whitbeck, Treas., v. Minch, 48 Ohio St., 210, 31 N. E., 743. Plaintiffs, likewise, rely upon Ratterman v. American Express Co., supra, and City of Toledo v. Buechele, supra. Without analyzing these cases, we are satisfied to say that in our judgment the payments of the inspection fees by the plaintiffs with and after their notices that they were paid under protest were involuntary payments. This is true because of the provisions of the regulation under which the plaintiffs would have been denied the benefit of the inspection services had they not paid the prescribed fees and also would have been subject to prosecution and punishment under the penal provisions of the regulation.

It may be that because of our findings, plaintiffs, as a matter of law, are entitled to an order requiring the defendants to return the money paid to them as inspection fees under the ordinances. We are disposed to exercise whatever discretion we have in refusing to make such an order as to all sums paid under protest, first, because it would be futile, and, second, because it would not be equitable. The plaintiffs have received full value for the funds paid for inspections. However, the fees impounded by the decree of the Common Pleas Court will be ordered paid to the plaintiffs.

Judgment accordingly.

Wiseman, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Williams, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 1021
    Decided October 10, 1953.)

      Mr. Philip B. Finkelmeier, Mr. C. H. Taylor and Messrs. Hoover, Beall, Whitman £ Eichel, for appellee.

      Mr. C. William O’Neill, attorney general, Mr. Chalmers P. Wylie and Mr. Harris F. Jacobs, for appellant.
   Matthews, P. J.

Berry Williams had been employed by the Sorg Paper Company for about 20 years when on October 13, 1949, while in the course of his employment in his employer’s factory, at Middletown, Ohio, he suddenly developed coronary occlusion, resulting in his immediate death. The Sorg Paper Company was amenable to and had complied with the Workmen’s Compensation Law. His widow, the plaintiff in this case, filed a claim for compensation with the Industrial Commission. On rehearing, her claim was disallowed on the ground that the employee’s death was not due “to an injury sustained in the course of and arising out of his employment. ’ ’

Within the time prescribed by law, the widow filed her petition in the Court of Common Pleas of Butler County, alleging that her husband sustained an injury when excessive strain in connection with his employment caused a coronary occlusion, which in turn caused his death, and that his injury and death resulted directly in the course of his employment from a cause arising out of such employment.

The Industrial Commission admitted that Berry Williams had been employed by The Sorg Paper Company, a complying employer, and that he had died on October 13, 1949, and then specifically denied that he had received any injury while employed, or that his death from coronary occlusion was caused or contributed to by any injury received in the course of and arising out of his employment.

The issues of fact were submitted to a jury which found in favor of the plaintiff. The court overruled the defendant’s motion for a new trial and entered judgment in plaintiff’s favor. This appeal is from that judgment.

Defendant assigns two errors as the basis of its prayer for a reversal of the judgment. They are that the judgment is manifestly against the weight of the evidence, and, secondly, that it is contrary to law.

Counsel have cited and commented upon many cases construing the constitutional and statutory provisions upon which the rights of employees to participate in the Workmen’s Compensation Fund are predicated. However, as we view it, there is very little difference between them on the law applicable to the rights of employees injured during their employment, or of their dependents in the event the death of the employee results from such injury.

The whole superstructure of statutory enactment and judicial interpretation is based on the provision found in Section 35, Article II of the Ohio Constitution, conferring power upon the General Assembly to pass laws providing for compensation “to workmen and their dependents, for death, injuries or occupational disease occasioned in the course of such workman’s employment.”

We understand the word, “occasioned,” as used here to he synonymous with “caused.”

In the exercise of this power, the General Assembly passed Section 1465-68, General Code, in which it provided for compensation for injuries “in the course of employment.” In another part of the section and in another connection, the basis of the exemption of the employer was made expressly to depend upon the injury occurring “in the course of and arising out of his employment. ’ ’

In the early case of Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St., 232, 116 N. E., 104, the court had occasion to construe the statute and to pass upon the constitutionality of some of its provisions. The construction then placed upon it has remained unchanged, although the language used in other cases has at times differed in order to make clear the result as the rule was applied to particular facts. In the last paragraph of the syllabus of the Fassig case the court stated that the provisions in Section 35 of Article II referred “only to an injury which is the result of, or arises out of the employment” and “do not cover any injury which has its cause outside of and disconnected with the employment, although the employee may at the time have been engaged in the work of his employer in the usual way. ’ ’ At page 247, ibid., the court said: “It was plainly the intention of the framers of the amendment, and of the statute, to provide for compensation only to one whose injury was the result of or connected with the employment, and would not cover any case which had its cause outside of and disconnected with the employment, although the employee may at the time have been actually engaged in doing the work of his employer in the usual way.”

In 1937, the General Assembly amended Section 1465-68, General Code (117 Ohio Laws, 109), by expressly limiting compensability to injuries received in the course of and arising out of the employment. In the language of the Constitution, such injuries are occasioned in the course of the employment.

In the multitude of cases that have arisen, the most frequently recurring problem confronting the courts has been the determination of whether the workman’s injury bore such a relation to his employment as to make it compensable. That it had to be occasioned in the course of the employment was clear. That an injury that was received during employment or in the course of employment, but having no relation to the employment, was not compensable, was equally clear. It had to be caused by or result from the employment. The question was whether the cause and result have to be direct or proximate.- Would any relation to the employment, even though remote, be sufficient? These questions were finally answered in the case of McNees v. Cincinnati Street Ry. Co., 152 Ohio St., 269, 89 N. E. (2d), 138, although the answer had been foreshadowed in many intervening cases.

In that case, the court stated in the syllabus:

“An injury does not arise out of the employment, within the meaning of the Workmen’s Compensation Act, unless there is a proximate causal relationship between the employment and the injury.” '

It was decided also in the same ease that death benefits were dependent upon the death resulting from an injury resulting directly from the employment.

Nothing was said in the Constitution or the statutes about any requirement of proof that the injury was accidentally received in order for it to be compensable. The only express limitation was against purposely self-inflicted injuries. However, most industrial injuries are accompanied by, or result from some unintended deviation from the usual course of business. In such cases, we have an accident or unforeseen occurrence independent of tbe injury, by which the injury is directly caused. In many cases, language has been used which, it has been argued, indicated that the Supreme Court had decided that such an unforeseen occurrence, independent of the injury itself, was essential. Finally, certain types of cases were presented that challenged the attention of the court to this specific question. Cases of sun stroke, heat prostration and the collapse in the course of the employment of an employee who was suffering from some disease which was the immediate cause of his death, but which might not have occurred at that time except for some condition of the employment, were presented for decision.

We believe the clearest.and most direct statement of the position of the Supreme Court is found in the case of Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266. Malone worked in a foundry where the heat was 113 degrees when the temperature outside was only 90 degrees. He collapsed because of the heat and died the day thereafter from heat prostration. There was no evidence of an unforeseen occurrence other than the collapse. It was urged by the defendant that as there was no proof of an accidental injury, there was no right to an award. In rejecting this contention, the court reviewed all its prior decisions bearing on the question and pointed out that in many of them recoveries had been upheld where no unforeseen occurrence preceded or accompanied the injury, i. e., where the only unforeseen occurrence was the injury itself.

At page 301, the court quoted with approval from the opinion of Judge Cardozo in Connelly v. Hunt Furniture Co., 240 N. Y., 83, 147 N. E., 366, 39 A. L. R., 867, as follows:

“ ‘The range of accident would be reduced, indeed, to vanishing dimensions if we were to take out of the category every case in which the physical movement had been willed without adverting to the consequences.’ ”

Following that quotation is the statement:

‘ ‘ While the decedent in this case voluntarily worked in a superheated atmosphere, his death was not the usual and expected result but the unusual and unexpected result of such employment, and was, therefore, accidental. ’ ’

The second paragraph of the syllabus of the Malone case is as follows:

“When, in connection with an intentional act on the part of a workman which precedes an injury to him, something unforeseen, unexpected, and unusual occurs which produces the injury or from which the injury results, it is accidental in character and result.”

As we construe all these cases' decided by the Supreme Court, its quest was not to discover whether there had been an unforeseen occurrence preceding or accompanying an injury, but whether the injury was “occasioned,” or “caused,” or “arose out of” the employment. Of course, the relation of cause and effect between the employment and the injury is more striking when it is disclosed by an unexpected incident causing an injury. The unexpected occurrence is unimportant per se. It is only proof that the injury arose out of or was caused by the employment.

Of course, the prerequisite of the right to compensation is that an injury should have been suffered. Generally speaking, disease furnishes no basis for compensation. But the injury or wound need not be to the external or exposed parts of the human body.

On this subject, the court said in the opinion in the Malone case, supra, at page 302:

“The appellant claims that the decedent not only suffered no accident but especially no physical or traumatic injury. A traumatic injury is one produced by any sudden violent attack upon the tissues or organs of a living body producing a wound, tear or an abnormal condition thereon or therein.”

Before turning to a consideration of the evidence in this record, we desire to revert to the more recent case of McNees v. Cincinnati St. Ry. Co., supra, in which it was held that an injury is not compensable unless there is a direct or proximate causal relationship between the employment and the injury. McNees had operated a trolley bus for the defendant, a self-insurer, for several years. For more than a year he had complained of shortness of breath, dizziness and pain around the heart. He was operating a bus during a very heavy fog at the time of his collapse and death. The cause of death was diagnosed as coronary thrombosis. It was the claim of the plaintiff that the stress, strain, and excitement of operating the bus in the heavy fog caused his death at the time, and that it was compensable. The trial court held with the plaintiff.

The Court of Appeals, in the second paragraph of the syllabus in 84 Ohio App., 499, 87 N. E. (2d), 819, said:

‘ ‘ Such injury if caused by mental strain and excitement alone produced in the course of, and arising out of the employment is compensable, since the statute now makes any injury so received a compensable one. ’ ’

On appeal to the Supreme Court, the judgment was reversed, and the cause remanded with instructions to enter judgment for the defendant. The trial court then entered judgment for defendant, and overruled the plaintiff’s motion for a new trial. On appeal, that judgment was reversed for error in the charge that “mere mental strain or worry is not an injury within the meaning of the Workmen’s Compensation Law.” 90 Ohio App., 223, 101 N. E. (2d), 1. The court, at page 231, et seq., quoted with approval from 58 American Jurisprudence, 756, Section 255, treating with the circumstances under which employees who brought to their employment an infirm body, such as an impaired heart, could recover compensation. It is pointed out that the great weight of authority holds'that a sudden and unexpected breaking of some portion of the internal structure of the body, even without any external happening of an accidental nature, is to be regarded as an accidental injury under statutes similar to the Ohio statute, and it is said: “ ‘This is true notwithstanding the workman may have been suffering from a pre-existing infirmity which constituted a predisposing cause of such disablement. It is said, in this connection, that an internal injury which is sudden, unusual, and unexpected is none the less accidental because its external cause is part of the victim’s ordinary work’ ” (Emphasis ours.)

We deduce from the many decisions of the Supreme Court that if an employee, or his dependents in event of death, prove that he has received an injury, as distinguished from a disease, in the course of and arising directly out of his employment, a case for compensation has been established and the fact that the employee brought to his employment an impaired or diseased body, upon which the exertions of his employment had a greater effect than upon a healthy person, does not negative the right provided the cause of his death at the particular time rather than at some later time was something arising out of his employment.

We turn now to a consideration of the evidence in this case in the light of this state of the law.

Berry Williams had been employed by The Sorg Paper Company for 20 years. He was 44 years of age. In 1946 he became afflicted with heart disease, accompanied with hypertension and probable coronary sclerosis. Prom that time on until his death he continued to consult the family physician, who cautioned him not to exert himself unduly. He took medicine to improve his condition from time to time and seemed to improve, at least, he did not appear to get worse.

In the beginning, his work consisted in moving rolls of paper from one place to another in the factory. At some time after he developed this heart condition, he was charged with the duty of seeing that the rolls were moved, and, by implication, it appears that his duty did not require him to do any part of the physical act involved in the moving, although it is clear that he did at times move or assist in moving the rolls. These rolls weighed from 1,200 to 1,500 pounds and ordinarily had to be moved about 35 feet'. They were either rolled on the floor or transported on a small threeAvheeled truck. No matter what method was used it could not be done Avithout exerting considerable force. The evidence shows that in the usual course, two employees were assigned to do this work, and that they combined their strength in moving the rolls.

There is substantial evidence to show that on the day of his death, Berry Williams proceeded to move these rolls personally without any assistance. There is evidence also that because of obstructions in the aisles he was unable to move them by the direct route 35 feet long, but was required to take a circuitous route from 200 to 250 feet in length. Williams continued to move these rolls unassisted during the morning and after the noon stop resumed his work. There is testimony by a fellow employee that the effort seemed to have an undue effect upon him. At any rate while on one of these trips moving these rolls he stopped to talk to a fellow employee and while doing so collapsed and died almost at once. This fellow workman noticed nothing unusual about his appearance or behavior until his collapse.

Each side introduced the testimony of two physicians who gave opinions as experts in answer to hypothetical questions. The hypothetical questions submitted to the physicians called by the defendant did not include the departure from the usual course of the work on the day Williams died. They testified that his death did not arise out of his employment, although they modified their opinions when the unusual features were presented to them on cross-examination.

The physicians called by the plaintiff gave it as their opinion' that Williams’ death was caused by the rupture or cracking of a blood vessel, which in turn caused an occlusion or blocking of the blood.

It. is the contention of the defendant that there is no substantial evidence of any injury in the course of and arising out of the employment. Defendant contends that his death resulted from the disease from which he had suffered since 1946 and not from any injury. They further interpret the Supreme Court decisions to which we have referred and others which they have cited and commented upon as requiring proof of some unforeseen occurrence other than the accident from which the injury results interrupting the usual' course of the work as a condition of compensability.

We cannot adopt these contentions. However, if we were required to conclude that it was essential to the plaintiff’s case that Williams’ death did not result from the usual course of the employment, we would hold and do hold that there is substantial evidence that his death resulted from an internal injury caused by over exertion in moving these heavy rolls without assistance for an unusual distance.

However, we think it is clear that Williams suffered an internal injury which directly caused his death, that this internal injury was received in the course of his employment, and directly arose out of his employment, and that whether he was engaged in his usual labor at the time or was subjected to unusual conditions is immaterial, except so far as the unusual conditions might have greater probative value on the issue of whether any injury had been received in the course of his employment, or whether he had not died from disease or' other causes having no relation to his employment.

We find no prejudicial error in the record, and the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


author: Miller, J.

text:
    The State, ex rel. Tejan et al., Appellants, v. Milby, Clerk, Appellee.

      (No. 2253
    Decided November 19, 1953.)

      Messrs. Cowden, Pfarrer é Creiv and Messrs. Magsig ds Meyring, for appellants.

      Mr. Jack E. Staley, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, denying relators’ application for a writ of mandamus commanding the respondent, as clerk of the board of trustees of Van Burén township, to “sign, execute, and deliver to the relators, and those for whom they bring this action, vouchers and/or warrants in the amount of the respective claims and for such other and further relief * * *."

The record discloses that during the year 1951, each of the relators on whose behalf this action was brought entered into contracts with the trustees of Van Burén township for certain materials to be used and repairs to be made upon certain township roads; that a certificate of the fiscal officer of the subdivision was not attached to the contracts certifying that the amount required to meet the same had been appropriated for that purpose and that the money was in the treasury or in the process of being collected as required by Section 5625-33, General Code; and that on April 15, 1953, the board of trustees recognized these claims as moral obligations. of the township and authorized payment of the same.

The facts are clearly set forth in the judgment entry, which we quote :

“ * * * the court finds that the claims set forth in the petition numbered from one to twenty-seven, inclusive, were claims for work performed and materials furnished to Yan Burén township in 1951, during which year township roads were badly in need of repair due to ravages of severe weather; that during the year 1951 there were insufficient funds or no funds on hand in the township road fund or general fund with which to pay these claims; that there was an overdraft in the road fund of $30,947.33 at the end of the 1951 fiscal year; that there was a general fund balance of $40,533.95; that there was nothing in the gas tax fund; leaving a total balance of all funds of $9,586.62 on December 31, 1951; that there was no certificate attached by the clerk of the board of said township trustees in 1951 to any of the contracts or orders for labor or materials constituting the claims set forth in the petition, to the effect that the money required to meet the same had been lawfully appropriated for such purpose, and was in the treasury or in the process of collection to the credit of the appropriate fund and free from prior encumbrances for the payment of such contracts or orders, as required by Sec. 5625-33, G. C.; that on April 22, 1953, during the second fiscal year following the year 1951, the board of trustees through the votes of the majority thereof, namely, Mr. Eichner and Mr. Wetz, the said Eichner and Wetz being all of the trustees of said township in office at that time, purported to authorize the payment of the twenty-seven claims set forth in the petition by twenty-seven separate resolutions, each one exactly similar, excepting as to the name of the claimant and amount of the claim, which read as follows:

“ ‘I make a resolution that the claim of............ for the amount of.......... dollars is a just claim and that the township has received full benefit of the transaction and that we authorize the claim to be paid. ’

‘ ‘ That there is nothing in the evidence to show that Van Burén township did not receive the full benefit of the work and materials making up the twenty-seven separate claims, and nothing to show that any of the claims are not correct as to amount; that the respondent, Dorothy Milby, as clerk of the board of trustees of Van Burén township, made up the minutes of the meeting at which the twenty-seven resolutions were duly approved by the two trustees of the township who were in office and present at the meeting on April 22, 1953, and said minutes were signed by the two trustees and by the respondent, as clerk of said board of trustees, prior to the filing of this suit; that the board of trustees of said township had sufficient funds on hand on April 22,1953, when said resolutions were approved, and at the time of the filing and the hearing of this action to pay all the twenty-seven claims set forth in the petition; and that the respondent, as clerk of the board of township trustees of Van Burén township, has refused to sign the warrants and/or vouchers in payment of said twenty-seven claims. ’

Based upon the foregoing facts, the trial court found that the respondent was prohibited by the provisions of Section 5625-33, General Code, from issuing or signing vouchers or warrants for any of the claims set forth in the petition. Counsel for the relators contend that these claims are legally enforceable as moral obligations on the authority of State, ex rel. Caton, v. Anderson, 159 Ohio St., 159, 111 N. E. (2d), 248; State, ex rel. Werden, v. Williams, Clerk, 29 Ohio St., 161, and other cases, while the respondent urges the correctness of the trial court’s legal conclusion.

We could well concur in the judgment of the trial court were this action grounded upon the alleged' contracts, for under Section 5625-33, General Code, they would be void, and any payments made thereunder by this respondent would subject her to liability to the political subdivision for the full amount so paid. See Section 5625-37, General Code. However, this action is not grounded upon the alleged contracts, but is based upon the resolutions adopted by the trustees which recognize the claims as moral obligations. The questions therefore arising are: (1) Was the board of trustees morally obligated to recognize these claims? and (2), if so, did the board of trustees have the authority to adopt the resolutions? As to the first propounded question we are of the opinion that the board of trustees properly found the obligations to be moral ones within the definitions of the same, as clearly set forth in State, ex rel. Caton, v. Anderson, supra, at page 163, where the court quoted as follows from 1 Cooley on Taxation (4 Ed.), 412, 413, 414, Section 194:

“ ‘The term “moral obligation” has been defined as “a duty which would be enforceable at law were it not for some positive rule which exempts the party in that particular instance from legal liability.” It has also been defined as one “which, cannot be enforced by action bnt which is binding on the party who incurs it, in conscience and according to natural justice.” A “moral obligation” means that some direct benefit was received by the state as a state or some direct injury has been suffered by the claimant, under circumstances where in fairness the state might be asked to respond, and there must be something more than a mere gratuity involved. In regard to the question whether the facts existing in any case bring it within the class of claims which the Legislature ought to recognize as founded upon equitable and moral obligations, it would seem that generally such question is largely one for the Legislature to decide for itself.’ ”

The question was one primarily for the board of trustees as stated in the fourth paragraph of the syllabus of the cited case:

“The extent to which moral or equitable claims against a municipality should be recognized is primarily for the legislative authority of the municipality to determine, provided, only, that such municipality may not expend any money for other than a city purpose or give it away. ’ ’

The board is authorized by Section 3298-1 et seq., General Code, to construct and maintain township and county roads; hence, the appropriation was for a lawful purpose. As to the authority of the boarddo adopt a resolution our Supreme Court has held in the Caton case, supra, in the first paragraph of the syllabus, that:

“A municipality has the authority to enact an ordinance appropriating money to pay a claim which is by law unenforceable against it but which on principles of justice and equity constitutes a moral obligation of the municipality. ’ ’

The second paragraph of the syllabus is applicable also, and provides:

“An obligation may be recognized by a municipality, where such obligation would be enforceable at law were it not for some rule which exempts the municipality in the particular instance from legal liability, or where the obligation is legally unenforceable but is binding upon the municipality in conscience and according to natural justice. ’ ’

We are of the opinion that the board of trustees has the same power and authority to recognize a moral claim as does the council of a municipality. The restrictions on appropriations and the expenditure of money set forth in Section 5625-33, General Code, are applicable to subdivisions and taxing units, .each of which is defined in subdivision (a) of Section 5625-1, General Code :

“ ‘Subdivision’ shall mean -any county, school district, except the county school district, municipal corporation, township, township fire district or township waste disposal district in the state.”

It will be noted that this definition includes municipal corporations, and that under subdivision (b) of Section 5625-1, General Code, municipal corporations shall mean:

“* * * any municipalities, including municipalities which have adopted a charter under the provisions of Article XVIII of the Constitution of Ohio.”

Since both townships and municipal corporations having a charter under Article XVIII of the Constitution are included in the cited section of the Code, the law as pronounced in the case of State, ex rel. Caton, v. Anderson, supra, is applicable to the case at bar.

The judgment is reversed and the writ sought is allowed in accordance with the prayer of the petition.

Judgment reversed.

Wiseman, P. J., and Hornbeck, J., concur.


author: Conn, J.

text:
    Balduf, Exr., Appellee, v. Evans et al., Appellees; Balduf, Appellant.
    (No. 4720
    Decided June 8, 1953.)

      Messrs. Cline, Bischojf S Cook, for appellee executor.

      Mr. Andrew J. Quinn and Mr. Harley A. Watkins, for appellant.
   Conn, J.

The executor of the estate of Robert J. Evans, deceased, began an action in the Probate Court to construe the will of such decedent. The devisees and legatees were made parties defendant. Each of the defendants was served with summons or entered an appearance, except one, which omission is not material here.

On page two of the petition are the following averments :

“During the last sickness of Robert J. Evans in March, 1951, defendant Lucille M. Evans, as the agent, at the direction of Robert J. Evans, got out of the metal box in the back room of the Evans home, the sum of fourteen hundred dollars and deposited the same, along with other funds, in a commercial account in the name of ‘(Mrs.) Lucille M. Evans, agent’ in The Ohio Citizens Trust Company, of Toledo, Ohio. Also in the metal box in the back room in the Evans home at the time of decedent’s death were two bank books, to wit:

“ (a) Savings account number 45,462 in the name of Robert J. Evans with The Home Building and Savings Company; balance January 1, 1951, $708.78.

“(b) Savings account number S 3,054 in the name of Robert J. Evans with The Toledo Trust Company; balance March 5, 1951, $936.80.”

It is alleged further by plaintiff that he is in doubt as to the true construction of such will in respect to the fifth item thereof, “and can not safely proceed without the direction of the court as to whether said $1,400 and the proceeds represented by said two bank accounts pass to Nell Balduf” under such item, which is as follows:

“Fifth. I give and bequeath to Nell Balduf all cash in the box in the desk in the back room of my house.”

A copy of the will of decedent is attached to the petition and made a part thereof. It appears that defendant Lucille M. Evans, under the eighth item of testator’s will, was named as residuary legatee.

The defendant Lucille M. Evans filed an answer to plaintiff’s petition, wherein, by reference to paragraphs, certain allegations of the petition were admitted, and such defendant averred that “there was no box on the desk in the back room.” Defendant Evans admitted that the contents of the box, as described in the petition, had been removed, and that $1,400-was deposited in the bank. Following a general denial, defendant Evans joined in the prayer of plaintiff’s petition that the court find that the $1,400 and the credit represented by the bank books are a part of the residue of decedent’s estate.

The defendant Nell Balduf filed her answer wherein she admitted the allegations in certain paragraphs of plaintiff’s petition by reference to the numbers thereof, notwithstanding the paragraphs were not numbered. Each defendant adopted this method of pleading, which is not approved for the reason that confusion arises as to issues of. fact raised on the pleadings.

Answering further, defendant Balduf averred that testator, Robert J. Evans, for many years kept and maintained the metal lockbox, mentioned in his will, on the desk in the back room of his home; that its location was temporarily changed from time to time by the testator and others at his direction from its usual place on such desk to other locations in the same or other rooms in his residence; that it was the custom, practice and habit of the testator to keep in such box substantial currency, money, cash, checks, bankbooks, money orders and other funds, and to use same to pay current bills and expenses; that it was the further practice of testator, when incapacitated, to direct others to remove certain specified sums from the box for the payment of current expenses and in event of severe illness to orally appoint Lucille M. Evans as his agent to deposit the currency from the box in a bank account in her name as agent in order that she might pay current bills and expenses; that upon his recovery, testator would direct her to reduce the account to currency and restore it to said metal box; and that Lucille M. Evans did act as agent for testator in 1948 and again in 1951 with respect to the currency in the box.

Defendant Balduf averred further that on November 16,1951, the Probate Court had ordered.Lucille M. Evans to restore the funds and the amounts of certain checks to the plaintiff, which she had previously removed from the box in accordance with the instructions of testator, excepting amounts disbursed in payment of current bills, and also to pay to plaintiff the amount of cash found in testator’s wallet, which he had previously taken from the box.

Such defendant alleged further that it was the intention, purpose and will of testator that, under the fifth item of his will, she should have ‘ ‘ all the currency, checks, money orders, bankbooks and other evidence of indebtedness owned by him and customarily kept by him in such metal lockbox,” and that testator on many occasions had advised the defendant that the contents of the metal box had been left to her by his will.

Defendant Balduf prayed that the court find the true intention of the testator as expressed in the fifth item of his will, and order and adjudge that “all money, currency, money orders, checks and bankbooks customarily kept by said testator in said metal box shall pass to and vest in Nell Balduf.”

No other pleadings were filed, and the affirmative allegations in the answers, to which reference has been made, were not traversed. It has been held that in an action brought by executors under favor of Section 10504-66, General Code, for the construction of a will, the petition raises all the issues and that no other pleadings are required. Hood v. Garrett, 53 Ohio App., 464, 5 N. E. (2d), 937. However, it appears to be the practice for interested parties to interplead, and for the court to consider all factual issues raised by the pleadings.

In the instant case, the defendant Evans, referred to hereinafter as appellee, moved the court for judgment on the pleadings. The motion was heard and submitted “for judgment on the pleadings,” was granted, and judgment was entered, the journal entry reciting “that the property described in plaintiff’s petition and in the answer of the defendant Nell Balduf, passes under ‘item eight’ [the residuary clause] of the decedent’s last will and testament.” From the judgment of the trial court, defendant Balduf, referred to hereinafter as appellant, appealed on questions of law. Such appellant assigns as error the action of the trial court in entering judgment on the pleadings.

The practice of entering judgment on the pleadings was known to the common law. This authority of the court has been confirmed and extended in our procedure by statute. Section 11601, General Code. In considering a motion for judgment on the pleadings, the court is required to apply the rule of liberal construction in favor of the party opposing the motion and, also, to give him the benefit of every reasonable inference that tends to support the sufficiency of the pleadings.

In passing on the issue raised by such motion, all allegations of fact well pleaded and not denied are considered as true. This rule is uniformly recognized. The same rule applies where a pleading is attacked by a general demurrer.

In 31 Ohio Jurisprudence, 878, Section 287, the rule is concisely stated as follows:

“In order that a court may, on a proper motion, grant judgment on'the pleadings, it must appear that, taking all the averments of the pleadings as they stand, they present simply a question of law; such motion should be overruled if the pleadings disclose an issuable fact, or a direct issue, joined upon a single material proposition which would require the introduction of testimony by the moving party to maintain such issue upon his part to entitle him to judgment, or raise a question of fact for the jury. * * * ”

See, also, Cleveland Concession Co. v. City of Cleveland, 84 Ohio App., 193, 83 N. E. (2d), 818.

From our analysis of the pleadings, it clearly appears that material issues of fact are raised by virtue of the allegations in plaintiff’s petition and the affirmative averments and general denials in the respective answers of the appellee Evans and appellant Balduf. On this thesis, we find ourselves in accord with appellant that the trial court was without authority to grant the motion of appellee and enter judgment on the pleadings as a matter of law.

Appellee concedes that the motion for judgment on the pleadings admits the allegations of fact contained in the answer of appellant, but notwithstanding this admission, nevertheless, contends that there is no issue on the pleadings other than one of law. This conclusion is predicated on the ground that the language of the will is unambiguous and, therefore, that parol evidence is inadmissible.

In other words, despite the factual situation presented on the pleadings, including those facts which are related to testator’s intention, the appellee contends that, there being no ambiguity in the language employed by the testator, extrinsic evidence is not admissible as to the ‘ ‘ custom, practice and habit of testator” or of “the intention, purpose and will of said testator” for the reason that the cardinal rule in the construction of wills requires the court to determine the testator’s intention from the will itself. However that may be, it is conceivable that upon the trial of this case a latent ambiguity may arise as to testator’s custom or habit or as to relevant facts and circumstances existing at the time his will was executed.

Where a latent ambiguity arises by reason of extraneous circumstances, known to the testator, extrinsic evidence of such circumstances may be admitted on the issue of testator’s intention. This rule is widely recognized. See Holmes, Trustee, v. Hrobon, 158 Ohio St., 508, 518, 110 N. E. (2d), 574; Williams, Admr., v. Black, 42 Ohio App., 423, 182 N. E., 351; Nicholl, Exr., v. Bergner, 76 Ohio App., 245, 63 N. E. (2d), 828; 41 Ohio Jurisprudence, 612, Section 480; 57 American Jurisprudence, 676, 741, Sections 1042 and 1144; 94 A. L. R., 48.

The arguments of counsel, both on oral presentation and by brief, have assumed a wide range and embraced collateral questions. The issue here is narrow and is encompassed within the single inquiry, to wit, are factual issues raised on the pleadings'? In answering this question in the affirmative, we are not required to go further, on the record before ús, and anticipate whether or not the evidence that may be offered on the trial will- be competent and admissible on the issue of testator’s intention.

It is our opinion, as already indicated, that the trial court erred in entering judgment on the pleadings. The judgment is reversed, and the cause is remanded for further proceedings.

Judgment reversed.

Fess and Deeds, JJ., concur.


author: McClintock, P. J.

text:
    Stumborg et al., Appellants, v. Sturrett et al., Appellees.
    (No. 2540
    Decided February 7, 1953.)

      Mr. M. Paul Redinger, for appellants.

      Mr. James V. Armogida, for appellees.
   McClintock, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas. We will refer to the parties as they were designated in the court bélow, to wit, the plaintiffs and the defendants.

Plaintiffs in their petition allege that they are instituting an action on behalf of themselves and all other similarily situated employees of the defendants; that the defendants were engaged in the business of mining, transporting and selling coal; and that such coal was mined in Stark and adjoining counties and transported by the defendants from the mines to Akron, Canton and other cities, and there sold by defendants to The Timken Roller Bearing Company, The Goodrich Tire & Rubber Company, The Goodyear Tire & Rubber Company and other manufacturing companies engaged in .industry affecting interstate commerce.

Plaintiff William Smith was employed by defendants sometime prior to April 30, 1950, as a bulldozer operator at an hourly rate of $1.50 per hour, which rate was thereafter increased on January 7, 1951, to $1.75 per hour. Smith continued in defendants’ employ until June 6, 1951.

The petition enumerates the various hours of work performed each week by various persons, and it is claimed that they are entitled to compensation at the rate of one and one-half times their hourly rate for all time employed in excess of 40 hours per week, as provided by subdivision (a) of Section 7 of the Federal Fair Labor Standards Act (Title 29, Subdivision [a] of Section 207, U. S. Code).

To this petition the defendants filed a demurrer, in which it is stated that the plaintiffs ’ petition failed to state facts constituting a cause of action. Upon due consideration, the court sustained the demurrer and, the plaintiffs not desiring to plead further, the court dismissed the petition. Plaintiffs appealed to this court on questions of law, and for their assignments of error say that the Court of Common Pleas of Stark County erred as a matter of law in sustaining the demurrer of the defendants to the petition of the plaintiffs on the ground that such petition did not state facts constituting a cause of action, and in dismissing the petition of the plaintiffs.

Subdivision (j) of Section 3 of the Fair Labor Standards Act (Title 29, Subdivision [j] of Section 203, U. S. Code) defines “produced” as meaning “produced, manufactured, mined, handled, or in any other manner worked on in any state; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any state.”

In the fourth headnote to the case of West Kentucky Coal Co. v. Walling, Administrator, 153 F. (2d), 582, we find the following:

“Where more than 50 per cent, of employer’s coal from a certain outlet was sold to concerns engaged in production of goods for commerce, employees who furnished the coal for such use or engaged in occupation necessary for use of coal in such production were covered by the Fair Labor Standards Act. Fair Labor Standards Act of 1938, Section 3(j), 29 U. S. C. A., Section 203(j).”

See, also, Ullo v. Smith, 177 F. (2d), 101, 12 A. L. R. (2d), 1122, the first, second and seventh A. L. R. headnotes being as follows:

“1. Employees engaged in work necessary to the maintenance of a building leased to various tenants, for the purposes to which the building is devoted, are covered by the Fair Labor Standards Act, where a substantial part of the building is used in the production of goods for commerce.

“2. A substantial part of a building is used in the production of goods for commerce, so as to bring its maintenance employees within the Fair Labor Standards Act, where approximately 20 per cent of the rent-able space is occupied by tenants substantially engaged in actual physical production on the premises. ’ ’

“7. The determination, for purposes of coverage of building maintenance workers by the Fair Labor Standards Act, of the question whether space actually used by one of a number of tenants of a building for physical production of goods for commerce or for activities relating to such production on the premises is a substantial part of all the space used by such tenant, is not a problem of mensuration, but one of judgment or the weighing of numerous relevant factors such as the floor layout, the percentage of employees on the premises engaged in actual physical production, the proportion of activities of other employees related to such physical production on the premises, and the quantitative and functional relation of such production to the total production activities supervised from the executive office in the building. ”

In the case of 10 East 40th Street Building, Inc., v. Callus, 325 U. S., 578, 89 L. Ed., 1806, 65 S. Ct., 1227, 161 A. L. R., 1263, the Lawyers Edition headnotes are as follows:

“1; The mere fact that an occupation involves a function not essential to the production of goods does not exclude it from the scope of the Fair Labor Standards Act (29 USC, Sections 206, 207).

“2. The mere fact that an occupation involves a function indispensable to the production of goods, in the sense of being included in the long chain of causation resulting in finished goods, does not bring it within the scope of the Fair Labor Standards Act (29 USC, Sections 206, 207).

“3. Maintenance employees, such as elevator starters and operators, window cleaners, watchmen, of the owner of a 48-story building devoted exclusively to offices leased to more than a hundred tenants pursuing a great variety of enterprises, part of whom are, and part not, engaged in occupations necessary for the production of goods for interstate or foreign commerce, are not within the minimum wage and overtime clauses of the Fair Labor Standards Act (29 USO, Sections 206, 207) providing that for the purposes of the Act an employee shall be deemed to have been engaged in the production of goods for interstate or foreign commerce if employed in any process or occupation necessary to such production; and this irrespective of the proportion of tenants so engaged to those not so engaged.”

Justice Frankfurter delivered the opinion in that case. It was a five to four decision, and, in looking over the United States Supreme Court cases, we find that Justice Frankfurter wrote most of the opinions involving the questions of the Fair Labor Standards Act. On page 579, ibid., he uses the following language :

“The Fair Labor Standards Act of [June 25] 1938 regulates wages and hours not only of employees who are ‘engaged in commerce’ but also those engaged ‘in the production of goods for commerce.’ Sections 6, 7, 52 Stat. 1060, 1062-63, 29 U.S.C., Sections 206, 207. For the purposes of that Act ‘an employee shall be deemed to have been engaged in the production of goods if such an employee was employed * * * in any process or occupation necessary to the production thereof, in any State. ’ Section 3 (j). When these provisions first came here we made it abundantly clear that their enforcement would involve the courts in the empiric process of drawing lines from case to case, and inevitably nice lines. Kirschbaum Co. v. Walling, 316 U. S., 517. And this for two reasons. In enacting this statute Congress did not see fit, as it did in other regulatory measures, e. g., the Interstate Commerce Act and the National Labor Relations Act, to exhaust its constitutional power over commerce. And ‘Unlike the Interstate Commerce Act and the National Labor Relations Act and other legislation, the Fair Labor Standards Act puts upon the courts the independent responsibility of applying ad hoc the general terms of the statute to an infinite variety of complicated industrial situations.’ Kirschbaum Co. v. Walling, supra, at 523.”

Again, in the case of A. B. Kirschbaum Co. v. Walling, Administrator, 316 U. S., 517, 86 L. Ed., 1638, 62 S. Ct., 1116, the first and fifth Lawyer’s Edition headnotes provide:

“1. Operating and maintenance employees of the owner of a loft building, space in which is rented to persons producing goods principally for interstate commerce, are within the minimum wage and overtime compensation provisions of the Federal Fair Labor Standards Act of 1938 (52 Stat. at L. 1060, 29 U.S.C., Section 201 et seq.) which provides that for the purposes of the act an employee shall be deemed to have been engaged in the production of goods if employed in any process or occupation necessary to the production thereof.”

“5. The statutory definition of employees engaged in the production of goods for commerce, by the provisions of Section 3 (j) of the Federal Fair Labor Standards Act of 1938 (52 Stat. at L. 1060, 29 U.S.C., Section 201 et seq.) that ‘for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed * * * in any process or occupation necessary to the production thereof,’ is to be construed in the context of the history of Federal absorption of governmental authority over industrial enterprise.”

A very complete summary of the various questions involved in the Fair Labor Standards Act is found in 31 American Jurisprudence, 1953 Cumulative Supplement, 199, Section 456, and reads as follows:

‘ ‘ Congress did not intend that the Fair Labor Standards Act should apply to all employees connected in any way with interstate commerce. There is no requirement in the Fair Labor Standards Act that the employer should be engaged in commerce and it is held that the nature of the employee’s employment and not the character of the employer’s business is the test whether the employee is engaged in commerce within the meaning of the act. Contrariwise, in order for an employee to come within the provisions of the Fair Labor Standards Act it is not sufficient that the employer is engaged in commerce, as an employer may be engaged in commerce generally but some of its activities may be so segregated and apart from the others and be of such a nature that it is purely intrastate business. The applicability of the Fair Labor Standards Act in the case of employees of one not all of whose business is of an interstate character is dependent upon whether a substantial part of the employee’s activities relate to goods the local distribution of which is a continuation of their movement in the channels of interstate commerce. If a substantial part of an employee’s activities relate to goods whose movement in the channels of interstate commerce is established he is covered by the act. On the other hand, it has been said that the percentages of interstate and intrastate commerce in the distribution of goods produced by an employer is not a material consideration in determining whether an employee is engaged in interstate commerce or in the production of goods for such commerce within the meaning of the act.”

The petition of the plaintiffs alleges only that the coal was mined in Stark and adjoining counties and was transported by the defendants from the mine to Canton, Akron and other cities, and there sold by the defendants to The Timken Roller Bearing Company, The Goodrich Tire & Rubber Company, The Goodyear Tire & Rubber Company and other manufacturing establishments engaged in industry affecting interstate commerce.

This language of the petition, which is the gist of the matter under consideration, does not state that a substantial amount of the coal mined by plaintiffs was used in the manufacture of products shipped in interstate commerce, and for this reason and by reason of the authorities herein cited, the judgment of the Court of Common Pleas must be and is hereby affirmed.

Judgment affirmed.

Putnam and Montgomery, JJ., concur.