text:
    COMPENSATION FOR LEAD POISONING.
    Court of Appeals for Jefferson County.
    Roth, Administratrix, v. The Industrial Commission of Ohio.
    Decided, December 15, 1916.

      Master and Servant — Lead Poisoning Not an Occupational Disease— Where Contracted 'Otitside of Regular Line of Duty — And Through Negligence of Employer — Phrase “Personal Injuries Sustained in the Course of Employment” Construed..

    R, a common laborer, not in tbe course of his- ordinary occupation was, by tbe negligence of bis employer, subjected to lead poisoning, from tbe effects of wbicb be died, held:

    1. That under tbe facts and circumstances of tbe case lead poisoning was not in bis -case an occupational disease.
    2. Tbe proximate cause of tbe injury and -death -of tbe plaintiff’s intestate was tbe negligence of bis employer in placing bim in a position where be was subjected to tbe poisonous fumes of lead.
    3..Tbe injury received by tbe plaintiff’s intestate is a personal injury within tbe meaning of the words, “personal injuries sustained in tbe course of employment,” as used in tbe workmen’s compensation law.

      G. L. Williams, for plaintiff in error.

      W. G. Brown, contra.
   Metcalfe, J.

The questions in this case are raised by the demurrer to the petition. The action is brought to recover compensation for the death of Edwin Roth, the claim having been presented to the state industrial commission, and rejected.

A demurrer was filed to the petition and sustained by the trial judge, and the plaintiff not desiring to further plead judgment was entered against her upon the demurrer.

The facts as stated in the petition are, in brief, that Edwin Roth was employed by McFeely Bros., ,of ^ 'Steubenville, as a common laborer; that he had worked for them as such for a considerable period of time; that while in their employ as such common laborer he was directed by his superior servant, an employee of McFeely Bros., who had the right to so direct him, to do some painting; that it was a cold day and the paint would not flow from the brush, and thereupon he was directed by his, superior servant to take the paint to a shanty a short distance from where he was at work, where there was a fire, and heat it so that it would run; that he did as directed; that there was no ventilation in the shanty and the windows were closed; and that after heating the paint he inhaled its fumes and thereby contracted lead poisoning from which he subsequently died.

It is also averred that he had no previous experience as a painter, and no knowledge whatever of the effects of heating the paint, or of inhaling the fumes therefrom, which would cause lead poisoning.

It is contended that the facts stated in the petition show that the plaintiff’s intestate died of an occupational disease and not of a personal injury, that therefore the plaintiff would not be entitled to recover, and that the ease is ruled by the ease of The Industrial Commission of Ohio et al v. Brown, 92 Ohio St., 309, in which the Supreme Court recently held that the workmen’s compensation law, as it now stands, does not apply to occupational diseases.

Conceding that lead poisoning is an occupational disease to which painters are subject, and that in the case of one following the occupation of painting no recovery could be had under the workmen’s compensation law for injuries sustained thereby, does it follow that one ignorant of painting and of the liability to lead poisoning, placed through the negligence of his employer in a position where he contracts the disease solely through the negligence of the employer, is prevented from recovering because such negligence caused him to contract an occupational disease? The majority of us are inclined to think not.

The facts set forth in the petition state a ease of negligence on the part of this young man’s employers. They were negligent in placing' him in a position where he would inhale the fumes of the heated paint.

Can a liability be gotten rid of where negligence is the disease to which painters are subject? The proximate cause of the injury is the negligence of the employer. This young man was not a painter by occupation; he was a common laborer; was entirely ignorant of the effects of inhaling the fumes of heated paint; and was doing a work to which he was wholly unused. Temporarily engaging in painting at the direction of his superior officer does not make his occupation that of a painter. Can it be said that where a common laborer who knows nothing whatever of the effects of lead poisoning is placed by his employers in a position where, of necessity, he becomes exposed to lead poisoning, there can be no recovery because of the fact that he was injured by a disease to which painters are subject?

Suppose that he had been placed by his employers in a position where, by their negligence, he had contracted smallpox or some other contagious disease. Could there then be any doubt of his right to recover at common law, if he lived; or of his administrator to recover under the statute, if he died ?

It seems to be inferred that a personal injury can only come through an act of violence-, but this is not true. Has not one suffered “personal injury” when he is subjected to a disease which may injure him for life, or cause his death, just as much as when he has broken a leg? We do not think that the term "personal injury” as used in the statute is applicable only to acts of violence, but that it may include any consequence to the person resulting from acts of negligence on the part of the employer; that is to say, where one is personally subjected to an injury, either by yiolenee or disease, because of negligence, then the resulting harm is a personal injury.

We think this case is clearly distinguishable from The Industrial Commission of Ohio et al v. Brown, supra. In that ease the party injured was employed in an occupation that is subject to lead poisoning. It.was his regular occupation, and not a mere temporary incident while engaged in another occupation;' which makes a wide difference in the two eases.

The judgment in this case is reversed.

Spence, J., concurs. Pollock, J., dissents.


source: Caselaw Access Project

author: Hamilton, J.

license: Public Domain

text:
    CLASSIFICATION OF CITIZENS WITH REFERENCE TO EVILS TO BE PREVENTED.
    Court of Appeals for Hamilton County.
    The State of Ohio, ex rel Charles Balli, v. George P. Carrel, Auditor of the City of Cincinnati.
    Decided, November, 1918.

      Constitutional Laio — Validity of an Ordinance Forbidding the Granting to an Alien of a License to Operate a Pool Table for Hire.

    1. Local authorities may exercise a degree of discretion in the enactment of laws regulating, under the police power, the operation of such lines of business as affect the morals of the community.
    2. The enactment of a municipal ordinance, which prohibits the granting to one,who is not a citizen of the United States of a license to operate a billiard or pool table for hire,, is not violative of rights conferred by the Fourteenth Amendment to the Federal Constitution, but is within the discretion of the municipal authorities'.

      George S. Raiuke, for relator.

      Saul Zielonka, City Solicitor, and Dennis J. By an, Assistant City Solicitor, contra.
   Hamilton, J.

The relator seeks by mandamus to compel the respondent to issue a license to him to operate a pool table in Cincinnati, Ohio, application for which was made by relator together with the tender of the license fee. The issue of the license was refused by respondent.

The’ answer of respondent claims to justify his refusal to issue the license upon the ground that' relator is not a citizen of the United States, but is a citizen of the country of Greece, and that the ordinance of the city of Cincinnati prohibits the issuance of a license to keep a pool table to a person who is not a citizen of the United States.

The ordinance providing for the issuing of licenses under which application was made by relator, is as follows:

“An Ordinance, No. 76 — 1918, ‘Providing for the licensing of billiard and pool tables by amending original Section 777 of the Code of Ordinances of the city of Cincinnati.’
“Be it ordained by the council of the city of Cincinnati, state of Ohio:
“Section 1. That original Section 777 of the Code of Ordinances of the city of Cincinnati be and the same is hereby amended to read as follows:
“Section 777. Billiard .Table, etc. — Each proprietor of a billiard or pool table shall pay a license of twenty-five ($25) dollars per annum for one such table and fifteen ($15) dollars per annum for each additional table; provided, however, that no license shall be granted to a person who is not a citizen of the United States.
“Section 2. That said original Section 777 of the Code of Ordinances be and the same is hereby repealed.
“Section 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law.
“Passed February 26th, A. D., 1918.
“Carl M. Jacobs, Vice Mayor.
“Attest: Fred Sehneller, Clerk.
“Approved: John Galvin, Mayor. Feb. 28, 1918.”

The relator admits that he is not a citizen of the United States, but urges that the provision of the ordinance ‘ ‘ provided, however, that no license shall be granted to a person who is not a citizen of the United States,” discriminates against him because he is an alien and is therefore unconstitutional' under the Fourteenth Amendment of the Constitution of the United States.

Sections 3659 and 3670 of the General Code of Ohio empower municipalities to regulate and license pool and billiard tables, etc., and under the authority delegated to it by said sections the ordinance in question was passed -by the council of the" city of Cincinnati. The case is one, therefore, relating to the police power of the state, and is consequently a question concerning the peace and morals of the community. Does the ordinance transcend the police power conferred upon a municipality by the statutes and recognized by the law of the land?

In determining the question the same rules of construction will apply as are applicable in passing upon the constitutionality of an act -of the General Assembly.

It must 'be conceded that “private interests are frequently found in opposition to public good; that public morals, public health, public order, public peace and tranquility are objects of cardinal importance to the well being of society.” To preserve and protect these objects for the public good many states, including our own state of Ohio, have passed laws limiting the granting of licenses to engage in the business of retailing intoxicating liquors to citizens of the United 'States. Such laws have been uniformly upheld, and in no instance held to be violative of the Fourteenth Amendment to the Constitution of the United States.

The leading ease on this question is that of Tragesser v. Gray, 9 L.R.A. (Md.),780, wherein it was held:

“Syl. 2. A state’s denial to persons not citizens of the United States of the right to obtain licenses to sell spirituous liquors within its borders is not a discrimination against them or an abridgment of their rights within the prohibition of the Fourteenth Amendment of the Constitution of the United States.”

And on page 786 the court says:

“We are unable to conceive that anyone, citizen or alien, can acquire rights which could in any way control, impair, impede, limit or diminish the police power of a state. Such power is original, inherent and exclusive; it has never been surrendered to the general government and never can be surrendered without imperiling the existence of civil society.”

It seems clear that this case, together with like cases on the question of the sale of intoxicating liquors, is analogous to the one at bar on the question of regulation.

In the case of Commonwealth v. Kinsley, 113 Mass., 579, the court say:

“The keeping of a pool table for hire is one of the many things affecting the public morals which the Legislature can absolutely prohibit or can regulate,”

thus classifying pool tables for hire with the business of retailing intoxicating liquors as affecting public morals.

"While it is true the element of the sale of intoxicants is not involved, it is a matter of common knowledge that pool and billiard tables are mostly frequented by young men many of whom are minors, with the opportunity ever present of forming habits detrimental to their future citizenship, and it is only fair and -proper to presume that as a class citizens who are interested in the laws of our country may be better entrusted with the conduct of a business which directly affects social conditions, than an alien whose only interest is pecuniary.

The cases cited in the brief of counsel for relator are not in point, as in those cases the acts declared unconstitutional were clearly passed for the sole purpose of depriving the Chinese in the city of San Francisco of the right to earn a living in the laundry business. As the court say-in the case of Wright v. May, 54 L.R.A. (Minn.), 153:

“A statute arbitrarily forbidding aliens to engage in ordinary kinds of business to 'earn their living would be unconstitutional. * ® * But where the calling or occupation is one which, though lawful, is subject to abuse, and likely to become injurious to the community, there is good authority for holding that the state may limit it to its own citizens and deny the right to all others.”

In the case of Commonwealth v. Sana, 195 Mass., 262, the Supreme Court upheld the law of that state restricting the granting of peddlers’ licenses to citizens and those who have declared their intention to become such.

In the case of Patsone v. Pennsylvania, 232 U. S., 138, the cases of Commonwealth v. Hana, and Tragresser v. Gray, supra, were cited with approval in the United States Court.

In the case of Patsone v. Pennsylvania, supra, the court upheld the statute of that state making it unlawful for unnaturalized foreign born residents to kill wild game except in defense of person or property, and to that end making the possession of shotguns and rifles unlawful, holding the law not unconstitutional under the due process and equal, protection provisions of the Fourteenth Amendment. Mr. Justice Holmes after stating the right of the state to classify with reference to the evil to be prevented, said: •

“The question therefore narrows itself to whether this court can say that the Legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent. * * * Obviously the question so stated is one of local experience on which this court ought to'be very slow to declare that the State Legislature was wrong in its facts. # * * If we might trust popular speech in some states it was right; but it is enough that this court has no such knowledge of local conditions as to -be able to say that it was manifestly wrong.”

It will be seen from the above that the court had in mind the proposition that local authorities possessed discretion, to some extent at least, in the passing of laws under the police power regulating-the operation of certain businesses as affecting the morals of a community, which discretion will not be interfered with by the court unless clearly shown to be an abuse thereof to the extent, that it was manifestly wrong.

"We are therefore of the opinion upon sound reason and the authorities cited, that the ordinance in question does not violate the Fourteenth Amendment to the Constitution of the United States, and the peremptory writ of mandamus is denied.’

Jones, P. J., and Wilson, J., concur.


author: Powell, J.

text:
    RECOVERY. FOR LOSSES DUE TO NEGLIGENCE OF CORPORATE DIRECTORS.
    Court of Appeals for Stark County.
    Wasmer v. The Massillon Iron & Steel Co. et al.

    Decided, March 24, 1916.

      Corporations — Action to Recover Losses — Due to Negligence of Directors — May be Maintained by Whom — Stockholders May Act, When.

    1. The right to maintain an action for recovery of a loss resulting from the negligence of directors of a corporation is primarily in the corporation itself, either upon its own initiative, or on demand of a creditor, when a creditor is interested, or of a stockholder.
    2. A secondary right to maintain the action accrues to a stockholder after demand made upon the corporation to institute such a suit and a failure on its part to comply with such demand or to prosecute the action in' good faith to a final termination.
    3. .Such a suit can also be maintained originally by the stockholders, when the facts alleged and proved show that the suit would not be prosecuted in good faith for the benefit of the corporation and its shareholders.

      Ammerman & Mills and J. Buchanan, for plaintiff in error.

      Lynch, Day, Finuple & Lynch, J. Ralph Dangler, Jr., M. B. & H. H. Johnson and Henry, Fau/ver, McGraw (& Thomsen, contra.

      Motion to direct the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 6, 1916.

   Powell, J.

The judgment of the court of common pleas in this case is affirmed on the ground that the plaintiff, William J. Wasmer, is without any legal right to maintain the action.

If recovery can be had upon the facts stated in the petition, it would be a recovery not in favor of the plaintiff directly but in favor of the defendant, the Massillon Iron & Steel Company, for the benefit of its creditors and stockholders. Plaintiff’s interest in such, recovery is as a stockholder of the Massillon Iron & Steel Company. The ground of recovery is the alleged negligence of the defendants as directors of said the Massillon Iron & Steel Company, whereby the loss of a large sum of money accrued to said defendant Iron & Steel Company and its stockholders. Such action can be maintained, and recovery had, in a proper case. Primarily the right to maintain it is in the corporation itself; either upon its own initiative, or on the demand of a creditor, when a creditor is interested, or of a stockholder. A secondary right to maintain the action accrues to a stockholder after demand made upon the corporation to institute such suit and a failure on its part to comply with such demand or to prosecute the action in good faith to a final termination. Such suit can also be maintained originally by the stockholder where the facts alleged and proved show that the suit would not be prosecuted in good faith for the benefit of the corporation and its shareholders. In the present case plaintiff, who was a shareholder, made demand upon the- corporation to institute suit against its alleged delinquent directors to recover from them losses claimed to have been sustained by the corporation by reason of their negligence. This demand was made August 26, 1912, and suit was brought pursuant to such demand in October, 1912, which suit is still pending. This action was commenced December 3, 1912.

We hold that in such cases a suit brought in good faith, upon demand made by a stockholder, is in the nature of an election of remedies and that such stockholder is bound by it. Plaintiff's amended petition states several reasons why he should be allowed to maintain this action. These reasons if sufficient for that purpose would also have been sufficient to have allowed him to maintain an original action, without first making demand on the corporation. ITis remedy, if one were necessary by reason of bad faith or fraud in the prosecution of the original suit, was to have intervened in that suit by answer and cross-petition. By analogy to the doctrine of election of remedies, he is bound by his own act in making demand upon the corporation to bring

Judgment affirmed.

Shields, J., and Houck, J., concur.


author: Gorman, J.

text:
    PROOF AS TO THE FIXING OF ALIMONY BY AGREEMENT.
    Court of Appeals for Hamilton County.
    Flora Marklein v. George Marklein.
    Decided, February 11, 1918.

      Divorce and Alimony — Motion to Terminate Payments of Alimony— Competency of Evidence as to an Agreement with Reference to Payments.

    At the hearing of a motion to terminate an allowance of alimony, it is error to refuse to permit the introduction of evidence tending to show that the allowance named in the decree was fixed by agreement and that said agreement was brought to the knowledge of the court at the time the decree was granted.

      A. C. Fnclce and Saul S. Klein, for plaintiff in error.

      Owen N. Kinney, contra.
   Gorman, J.

This case is here on error from the court of insolvency.

It appears from the record that in 1911 George Marklein filed a petition in the court of insolvency for divorce against his wife, Flora Marklein, averring that she was guilty of gross neglect of dnty in that she had willfully failed and neglected to take care of her home or perform her household duties. She was duly served with summons, and a return of such service was duly made.

On the 19th of February, 1912, the court of insolvency entered a decree in favor of the plaintiff, George Marklein, for divorce on the ground that the wife was guilty of gross neglect' of duty towards the plaintiff. The wife had filed no answer, and was in default for answer.

The court further ordered that the plaintiff pay to the defendant, Flora Marklein, the sum of $1,250 upon the endorsément of the decree, and further awarded to the defendant the sum of $3 per week, as alimony, for her support, the plaintiff to pay the costs.

It appears from the record that on February 17,1912, two days before the decree was 'entered by the court of insolvency, Flora Marklein signed a paper which was thereafter filed in the court of insolvency on February 19, 1912, the day on which the decree for divorce ,and alimony was entered. This paper is a receipt to George Marklein, by Flora Marklein, for a municipal bond of $1,000 issued by the city of Henderson, Kentucky, and also a cheek for $250 drawn upon the "Western German Bank, and two solitaire diamond rings. The paper further sets out the following statement:

“I also agree to accept the sum of three ($3.0)0) dollars per week as alimony in the ease of Marklein v. Marklein, and authorize the court of insolvency to so correct the decree made this day.”

The plaintiff, George Marklein, continued to pay said alimony of $3 per week until April 16, 1917, upon which date he filed a motion in the court of insolvency asking the court to terminate the payment of alimony.

Upon the hearing of this motion the wife was represented by counsel, who sought to show to the court that the amount of three dollars per week was by agreement of the wife and the husband at the time the divorce was granted in 1912.

The court refused to permit this evidence to be introduced, and refused to permit counsel for the wife to show that this agreement as to the payment of the sum of $3 per week for alimony was brought to the attention of the court at the time the decree for •divorce was granted. And the court upon final hearing made an entry in the ease terminating the payment of the three dollars per week as alimony.

Error is prosecuted to this court on the failure of the court of insolvency to permit the evidence to be introduced to show that the amount of $3 per Week ,as alimony was by agreement 'between the husband and the wife an'd that this agreement was brought to the attention of the court on the 19th of February, 1912, the time of the granting of the divorce and alimony.

A motion was made for a new trial, which was overruled.

It is claimed in this court that the insolvency court erred, and that this error was fatal to the plea of the wife, and that the judgment below should be reversed.

We are of the opinion that the court 'below erred in refusing to permit counsel for Flora Marklein, plaintiff in error, to show that the amount of the alimony was agreed upon between herself and her husband. It would appear that there was no way in which the court would grant her $3 per week as alimony because the defendant was in default for answer, unless it be by consent of the husband or 'by agreement between the parties. The record shows that the agreement consisting of a receipt by the wife, was signed two days before the decree was entered, and in this receipt it was set out, as we have above stated, that she agreed to accept $3 per week as alimony to be paid to her by the plaintiff, her husband. This paper was signed two days before the decree was entered and it was filed in that court, and presumably must have been shown to the court before the decree was there entered.

Aside from the fact that such paper was filed in the court, we hold that it was proper for the wife to show that there was an agreement between herself and husband before the entering of the-decree, and that this agreement was for $3 per week to 'be paid by the husband; ,and further that this agreement was brought to the attention of the court even though there were no written agreement between them. The entry itself fails to set out that the amount of $3 per week was 'by virtue of an agreement between the parties, but the admission of evidence to show that it was by virtue of agreement could have had no effect whatsoever in varying the terms of the agreement.

In the case of Wood v. Jackson, 8 Wendell (N. Y.) Rep., 2, the second paragraph of the syllabus is as follows:

“A former judgment may be given in evidence accompanied with such parol proof as is necessary to show the grounds upon which it proceeded, where such grounds from the form of the issue do not appear by the record itself, provided that the matters alleged to have been passed upon 'be such as might legitimately have been given in evidence under the issue joined, and such that when proved to have been given in evidence, it is manifest by the verdict and judgment that they must have been directly and necessarily in question and passed upon by the jury. ’ ’

This principle being applied to the trial, court would make such parol evidence admissible, because this evidence would not tend to vary the terms of the decree, either to contradict it, or to make the decree more or less, or in any way to affect the validity or force of the decree.

Counsel for the husband has cited the ease of Sargent v. Sargent, 8 N. P., 238, as tending to support his contention that this evidence was incompetent, but an examination of the case cited shows that the court in the trial of the case did admit the oral evidence -but subsequently was of the opinion that it ought not to have 'been admitted, although the court did admit the evidence tending to show the terms upon which the decree was entered.

In the case of Olney v. Watts, 43 O. S., 499, the court says that if the party complaining could have shown and proved that the amount of alimony was by virtue of an agreement, then it would be admissible.

We therefore hold that the court below in the trial of this cause should have permitted the oral evidence to be produced, as well as any written evidence tending to show that the amount of alimony to be paid to Flora Marklein by George Mjarklein was by virtue of an agreement to pay $3 per week and that this agreement was brought home to the knowledge of the court at the time the court ordered the decree to be entered; and because. of failure of the court below to admit this evidence the plaintiff in error was prejudiced, and the judgment is reversed and the cause remanded to the insolvency court for a new hearing.

Jones, P. J., and Hamilton, J., concur.


author: Houck, J.

text:
    APPLICATION OF THE THREE-FOURTHS JURY LAW.
    Court of Appeals for Morgan County.
    F. B. Smith et al v. Carrie E. Craig et al.
    Decided, June 17, 1918.

      Roads — Appropriation of Land for — Compensation may be Assessed by Nine Jurors — Section 11455.
    The three-fourths jury law applies to verdicts assessing the value of land taken for a county road.

      G. O. McGonagle, G. H. Fonts and M. E. Danford, for plaintiffs in error.

      John Q. Lyne and T. E. McElhiney, contra.
   Houck, J.

Error to the Court of Common Pleas of Morgan County.

On December 4th, 1916, the plaintiffs here began a proceeding 'before the county commissioners of Morgan county, in which it was sought to have a county road established. The usual petition having been filed, and hearing had, the road was established by order of the county commissioners, and compensation and damages awarded certain land owners.

To the findings and orders of the county commissioners an appeal was taken to the probate court, trial by jury had, and a verdict returned against the establishment of the road. Only nine jurors concurred in the verdict. A motion for a new trial was overruled, and judgment entered accordingly. Error was prosecuted to the common pleas court, and the judgment'of the probate court was affirmed.

But one question is raised by counsel for plaintiffs in error, namely: Was the verdict of the jury, which was signed and returned by nine of the twelve jurors, a valid, legal and constitutional verdict?

The claim of counsel for plaintiffs in error is: that under Section 19 of Article I of the Constitution of Ohio, the taking of private property for the making or repairing of roads must he compensated for to the owner in money, the amount to be fixed by a jury, which must 'be composed of twelve men, and all must agree in the verdict returned.

True, the basis of the suit under review was the appropriation of land for road purposes.and the section provides, “and such compensation shall be assessed by a jury.” But nowhere in the section and article of our Constitution relied upon by learned counsel doe's it fix the number of jurors necessary to concur in a verdict. Therefore, we must and are bound to look to some other constitutional or statutory provision to determine this question.

Section 5 of Article I of the Ohio Constitution, as amended September 3, 1912, reads:

“The right of trial by jury shall be inviolate, except that, in civil eases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the ..jury-”

Section 11455, General Code, reads:

“In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. ’ ’ * * *

Section 11212, General Code, reads:

“The provisions of law governing civil proceedings in the court of common pleas, so far as applicable, shall govern like proceedings in the probate court, when there is no provision on the subject in this title.”

To us it seems clear that the makers of our Constitution and the members of our Legislature have clearly settled and determined the question involved in this case, and by so doing, have saved the courts much trouble and labor. We think the constitutional and statutory provisions just referred to are clear and plain of meaning, and when applied to the facts in the case at bar only one conclusion can be reached, and that is that the judgment in this case, as entered by the probate and common pleas courts, is right.

Said constitutional amendment provided that, in civil eases, laws might be passed authorizing the rendering of a verdict by the concurrence of not less than three-fourths of the jurors. The action of the makers of our Constitution left it to legislative enactment, and that body has seen proper to act, and we must follow the Constitution and the law as we find same. •

If we were to adopt the theory, as advanced by plaintiffs in error, we would find ourselves much confused in our endeavor to determine in just what cases the three-fourths rule would apply, and we think the view of 'counsel in this regard entirely too narrow.

Judgment affirmed.

Powell, J., and Shields, J., concur.


author: By the Court.

text:
    RIGHT OF A MINOR TO BE HEARD ON BECOMING OF AGE.
    Court of Appeals for Hamilton County.
    Raymond Rupert v. The Cincinnati Traction Company.
    Decided, May 27, 1918.

      Judgment Entered by Confession Before a Magistrate — For the Purpose of Effecting a Settlement in Favor of a Minor Who Claims He Was Not Represented — Right of the Minor to Prosecute Error Upon Becoming of Age.

    Where a petition in error alleges that the plaintiff in error has become of full age since the rendition of judgment in a certain proceeding in which his name appeared as plaintiff but in which he was not legally represented or his rights properly protected by the appointment of a guardian ad litem, it is error to grant a motion to dismiss the error proceeding on the ground that the court is without jurisdiction.

      McNeill c& Thompson, for plaintiff in error.

      Sherman T. McPherson, contra.
   By the Court.

This is a proceeding in error seeking the reversal of a judgment in the common pleas court, wherein that court sustained defendant’s motion to dismiss plaintiff in error’s petition in error and rendered a judgment therein dismissing said petition in error. This holding and judgment was based upon a finding that the court of common pleas had no jurisdiction to entertain or consider said petition in error in tliat court.

The action in the court of common pleas was a petition in error filed by the plaintiff in error in this proceeding against the defendant in error herein, seeking to review and set aside certain proceedings wherein a confessed judgment for thirty-five dollars was entered January 9, 1913, before a justice of the peace in an action brought by one Joseph Sehillmoeller who alleged that he was “the guardian and next friend” of plaintiff, who was then a minor, against the defendant the Cincinnati Traction Company.

S'aid petition in error, in addition to the statement of the judgment and proceedings in said court sought to be reviewed, made certain allegations of fact which plaintiff in error deemed necessary in order to secure such review, among which were the allegations that he became twenty-one years old on the 7th day of May, 1916; that said Joseph Sehillmoeller was a mere volunteer in bringing said suit as guardian and next friend and had no warrant or authority in that capacity; that he was not appointed by said justice of the peace as guardian or next friend to the plaintiff noi’ was he ever appointed by any court as guardian of plaintiff; that no trial of said cause was had before said justice of the peace nor was any testimony heard or any investigation made into the fabtg of the ease, but that said judgment was entered to carry out an agreement of settlement theretofore made between said Joseph Sehillmoeller and the Cincinnati Traction Company; and that said justice of the peace never acquired jurisdiction to hear and determine said cause.

It is held in Roberts v. Roberts, 61 O. S., 96, that it is proper to aver such extrinsic facts, in a petition in error, as may be necessary to show that plaintiff in error has succeeded to rights under the judgment or has reached the age of majority, and as to such extrinsic facts the petition in error should be verified, as was done in thig case.

The petition in error in this case was filed June 19, 1916. It alleges that plaintiff in error became of age May 7, 1916. This is an allegation of fact upon which issue may be taken by defendant in error and, if found to be true, brings plaintiff within the terms of Section 12270, C. C., and entitles him to prosecute the proceedings in error. The fact that the record in the court of the justice of the peace may show a different age as to plaintiff in error, does not prevent him from averring his true age and establishing his right to bring error proceedings in the court of common pleas.

The court of common pleas clearly erred in holding that it was without jurisdiction to hear and consider the petition in error and in entering a judgment of dismissal.

How far plaintiff in error can go in proving facts contrary or in opposition to the record of the ease below, and the effect of such record, is not at this time presented to the court. The purpose of the law is to afford a minor an opportunity to be ‘heard, upon arriving at full age, in a case where he has not been, legally represented and where his rights have not been properly protected by the court by the appointment of a guardian ad litem, as provided by Section 10234, G-. C., or otherwise as may be provided by law. Such issues of fact as are properly alleged in the petition in error must be heard and considered by the court of common pleas, if issue is taken thereon by the defendant in error. But as no hearing upon these issues was had in that court it would be premature for us to discuss and consider them.

The judgment of the court of common pleas must therefore be reversed and the cause remanded for further proceedings.

Jones, P. J., Wilson, J., and Hamilton, J., all concur.


author: Pollock, J.

text:
    LIMITATION ON RECOVERY BY NEXT OF KIN FOR WRONGFUL DEATH.
    Court of Appeals for Trumbull County.
    Gerrard, Administrator, v. The Mahoning Valley Railway Company.
    Decided, September 26, 1918.

      Liability for Wrongful Death — Parents and Next of Kin Without Right of Action — Where W.ife of Childless 'Couple Survives Husband— Policy of the Law with Reference to Compensation for Wrongful Death.

    When the death of a person is caused by the wrongful act of another, Sections 10770 and 10772, General Code, do not give a right of action for the benefit of the parents and his next of kin, if such person died without children, but leaving a wife surviving him, although the wife died without an action' having been begun for her benefit.

      Harry C. Gahn, John J. Bullivan and Warren Thomas, for plaintiff.

      Fillius (& Fillius and Harrington, DeFord, Heim é Osborne, contra.
   Pollock, J.

The defendant, the Mahoning Yalley Railway Company; was, on August 27, 1915, operating an electric street railway over the streets of the village of Gerard, and on that date plaintiff’s intestate, Fred H. Gerrard, was riding on a motorcycle, - attached to which was a side car in which his wife, Clara Gerrard, was riding. "While Gerrard was driving his motorcycle along the streets of this village, it came into collision with one of the electric cars of the defendant company, causing the death of both himself and wife.

This action was brought by his administrator to recover damages from the defendant for the benefit of Gerrard’s father, mother and brothers-, and sisters, claiming that the collision which resulted in his death was caused by its negligence.

There was an issue joined by the answer to the petition, denying plaintiff’s right to recover for the beneficiaries named in the petition and the negligence alleged therein.

Afterwards, the case went to trial, and at the close of the plaintiff’s testimony, defendant, by motion, asked„ the court to direct a verdict on the ground that the persons for whose benefit the action was brought had no interest in a recovery. The court sustained the motion and this action is prosecuted to reverse the judgment of the court below for error in sustaining that motion.

It developed in the testimony that Fred Gerrard, at .the time of his death, had no children, and that his wife, who was injured in the accident, lived some hours after his death, but died without any action having been brought for her benefit to recover damages for negligently causing her husband’s death. Before the bringing of this action Mrs. Gerrard had died, and it was brought for the ■ benefit of his father and mother and brothers and sisters, as before stated.

The right to maintain an action to recover damages from another for his wrongful act which causes death is given by Section 10770 of the General Code. Section 10772 of the General Code, designates the persons for whom such action may be maintained, and reads, so far as necessary in this case, as follows :

Section 10772. “Such actions shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of bin of the person whose death was so caused. It must be brought in the name of the personal representative of the deceased person and the jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought.”

The Legislature, by this section, separated the persons for whom a recovery could be had into two classes. First, the recovery is for the benefit of the wife or husband and children; then, second, if there be neither of them, then for the parents and next of kin of the deceased. The cause of action accrues at the death of the person injured by the negligence of another, and the rights of the beneficiaries are fixed and determined at that time. At the time of the death of Gerrard, his wife was the sole beneficiary under this statute. His parents and brothers and sisters had no pecuniary interest in the damages that might be recovered for his wrongful death. Their interest at the death of Fred Gerrard could not arise, when at the time of his death, his wife was living. ■ It is only by reason of her death that they can claim any interest in a recovery for his wrongful death. Change of beneficiaries by death gfter the decease of Fred Gerrard could not change a liability that had already vested.

In Doyle, Administrator, v. Baltimore & Ohio Railroad Company, 81 Ohio State, 184, the plaintiff administrator brought suit against the defendant to recover damages for the wrongful death of her husband, alleging that he left no children and that she was the sole beneficiary. The ease was tried in the court of common pleas, and a judgment recovered. Error was then prosecuted to the circuit court and there the judgment of the common pleas court was reversed, and from that judgment error was prosecuted to the Supreme Court where the judgment of the circuit court was affirmed. While the proceedings were pending in the Supreme Court, the wife died. An administrator de bonis non was appointed, and the action revived in his name. The action was remanded to the common pleas court and there amended pleadings were filed which developed the fact that the wife, Mary Doyle, at the death of her husband, was his sole heir and next of kin, that he left no children or parents, that he had some collateral heirs, and that the mother of said widow survived her. The court held that according to the provisions of Section 6135, Revised Statutes (now Section 10772, G. C.) after the death of said widow there remained no statutory beneficiary—

“Unfortunately there is no provision of the statute, that cpon the death of Mary Doyle, the exclusive beneficiary in the suit, the right of action shall vest in some other next of kin of John Doyle, who at the time the cause of action herein accrued, had no interest in it,”

It will be noticed that the difference between the case just referred to, and the case now before us, is that on the death of the husband in the former case there was no person left who could be a beneficiary under the statute except his wife. While in the instant case, at the time of the husband’s death, his wife survived him and he had parents and brothers and sisters •; but under the provisions of the statute, none of these at that time could receive any benefit, from his wrongful death except his wife.

This case does not dispose of the question we have here, but it is helpful in determining the limitations that should be placed upon this statute. Price, Judge, in the opinion on page 191, referring to the section, says:

That it “provides that where there is no wife or husband, and no children, the action shall be for the benefit (exclusive) of ‘the parents- and next of kin of the person whose death shall be so caused.’ In this case, there was a widow but no children, so that the clause relating to the right of ‘parents and next of kin’ of the deceased husband has had no field for operation. ’ ’

And again on the following page he says:

“Unfortunately there is no provision of the statute, that upon the death of Mary Doyle, the exclusive beneficiary in the suit, the right of action shall vest in some other next of kin of John Doyle, who at the time the cause of action herein accrued, had no interest in it.”

To now hold that the action could be maintained for the benefit of the parents and brothers and sisters would be giving them a right to recover for damages in which they had no interest, and which did not accrue at the time of Gerrard’s death, but their only interest therein came after and by reason of the death of the wife.

The Supreme Court of Maine, in the ease of Hammond v. Lewiston Railway Company, 76 Atlantic, 672, under a statute, so far as the beneficiaries are concerned, somewhat similar to our own, held that the cause of action vested immediately and finally at the death in the statutory beneficiary, and not when suit was brought; and, hence, on the death of the beneficiary could not be transferred to any other beneficiary on her failure to sue.

To the same effect is: Woodward, Administrator, v. Chicago & Northwestern Railway Company, 23 Wis., 400; Dillier v. Railway Company, 35 Indiana Appeal, 52 (72 Northeastern, 271); Longul v. Mansfield, 91 Tenn., 458; 19 Southwestern, 53.

Our attention has been called to the rule announced by our Supreme Court that—

“In applying these statutes, the courts should give effect to the sound and wholesome humanitarian policies designed to be promoted by their enactment.” Ranson, Admr., v. New York, Chicago & St. Louis Railroad Company, 93 O. S., 223.

The principle thus announced by the Shpreme Court should control the court in applying this statute, but these statutes create new rights which did not exist at common law, and at least only the ordinary and usual meaning to be drawn from the language used is as far as the courts should go in permitting a recovery.

The courts should neither add to nor take from the statute, in order that a judgment may be obtained for the benefit of the, parties who had no beneficial interest in a recovery at the time the cause of action accrued.

The Legislature, in passing this act, was attempting to provide compensation for the loss which the parties named in the statute would sustain by reason of the wrongful death. It does not provide for a recovery by an administrator for the benefit of the decedent’s estate, but provides that the recovery shall vest in the wife or husband and children. These are the persons who ordinarily suffer pecuniary loss by the death of either the father or the mother. It is only in case that the deceased has no husband or wife or children, that the parents or brothers and sisters ordinarily suffer pecuniary loss from his death. No doubt, for that reason the Legislature has provided for the two classes of persons receiving benefits from wrongful death.

It has not been the policy of the Legislature of this state to provide for a recovery for the benefit of either collateral heirs or creditors; and this seems to be the policy of the law-making power in other states.

So far as we have been advised the decisions of the courts in other jurisdictions are in harmony excepting the case of Norris v. Spottenberg Railroad, Gas & Electric Company, 70 S. Carolina, 273 (49 S. E., 854). The court in this ease seems to have taken a different view, but we do think the weight of authority and better reasoning is in harmony with the cases we have cited.

We think a plain reading of these statutes prevents the prosecution of the action in the court below to recover for the unlawful death of Fred Gerrard, his wife having survived him, and the judgment of the court below is affirmed.

Metcalfe, J., and Farr, J(, concur.


author: Lawrence, J.

text:
    RELIEF DENIED FROM A DITCH IMPROVEMENT WHICH PROVED DISAPPOINTING.
    Court of Appeals for Lorain County.
    George L. Ammon et al v. Conrad A. Horn, Auditor, et al.

    Decided, May 19, 1918.

      Ditches■ — Commissioners Encouraged to Tile a Ditch — Situation Found to he Worse After the Improvement than Before — Relief from the Assessment Denied — Lack of Benefits Not Ground for Modification hy a Court of an Assessment, When.

    1. In the absence of fraud or collusion no relief will be granted from an assessment for a ditch improvement, where the complaining property ownérs, by their action as well as by silence and acquiescence, induced the county commissioners to tile a ditch in the belief that it would be a benefit to them all, but which on actual tost was found to have made the situation worse rather than better.

      2. The authority vested in the court by Section 6500, to grant an order which will make such an assessment equitable where benefits are not shown, does not afford ground for relief from an assessment for an improvement which the community procured to be made on the theory that it would not have to be paid for by .them unless.it proved beneficial.

       A motion to certify the record in this case was sustained by the Supreme Court, but the case was subsequently dismissed for want of preparation.

   Lawrence, J.

This case is in this court on appeal from the judgment of the court of common pleas.

Without going into an extended statement of the facts, it seems sufficient to say that this suit arises out of dissatisfaction of certain property owners, farmers, along the line of a certain ditch in Ridgeville township. It seems that in 1913 one Shaw petitioned to the county commissioners of Lorain county for the improvements of this certain ditch. The proceedings had before the county commissioners all appear to be regular, and no complaint is made that those proceedings were irregular or erroneous in any particular. The cost of this improvement w.as to be assessed upon the property owners supposed to be benefitted by the proposed improvement of this ditch. No complaint was made by any of the property owners, now plaintiffs in this case, as to the method of such improvement, although duly notified according to law; no complaint was made that it would not be conducive to the public health, convenience or welfare, or that the route thereof was impracticable. The hearing was had before the county commissioners as provided for by law, and the order finally and legally made by the county commissioners ordering the improvement. The contracts were let in the manner provided by law and the work was completed in this ditch.

After the completion of this work dissatisfaction arose apparently universal among the property owners, and this dissatisfae" tion expressed itself in the form of a petition to the court- of common pleas asking for an injunction against the collection of the assessments upon the ground that no benefits were in fact obtained by the improvement of this ditch, but, on the contrary, damage was sustained by the property owners, in that the ditch did not drain the lands of these property owners as well after the completion of this improvement as the ditch drained them before in its then state.

There are other allegations in the petition to the effect that some of the petitioners are over-assessed in that only a portion of their lands were drained by this ditch while the assessments are based upon the benefits of the whole of the land, but no evidence of a substantial nature is offered in the case bearing out this claim. We therefore treat the case as if the relief was asked solely for the reason that no benefits were obtained by this improvement by these plaintiffs.

The evidence clearly discloses that the improvement which was thus made consisting of the placing of tile in this ditch and thus making the same a blind ditch with tile of a certain size, was well known at the time of its construction by all or practically all of these plaintiffs, and no objection was made by any of them during the progress of this work as to the propriety of the same.

We have investigated the cases in Ohio which have some bearing upon the facts presented in this case, and we are unable to find a single case where under such circumstances the relief prayed for in the instant case has been granted.

The nearest approach to the granting of such relief in a similar case that we have been able to find is in the case of Stemen v. Hizey et al, reported in the 11th Ohio Circuit Court Reports, New Series, at page 347. In that case suit was brought to enjoin the collection of assessments levied by township trustees for a similar improvement, upon the ground that the plaintiff received no benefit from the tiling of the ditch, but the court says that: .

“The contention of the defendant is this: that a court of equity can not attack by injunction the judgment of a judicial board; that if the plaintiff has any remedy at all, it is by appeal or error. With that contention of the defendant, we are in accord, if there is a provision for error or appeal.
“The question presented then is this: Could this plaintiff appeal or could he prosecute error from the judgment of the trustees of Violet township in assessing him for the construction of this ditch, when he received no benefit from it ? ”

The court in that case then proceeded to show that under the statutes then in existence, relating to' the improvement of ditches by township trustees, that there was no appeal provided for by the said statutes from an unjust assessment by the township trustees made against him; but the appeal which was provided for was the appeal provided for by Section 4533 of the Revised Statutes, now Section 6625 of the General Code, and in view of the fact that no appeal existed to the plaintiff in that case from the action of the township trustees, and in view of the fact that the petition in that case set forth an unjust assessment of his property for a ease in which he derived no benefits, the court held that such a petition did state a cause of action, but in the case at bar it will -be noted that the relief here sought is not that the property of any one of these plaintiffs is not benefitted in the same proportion that other property assessed for the construction of this ditch is benefitted, but is brought because of the fact that upon actual test of this ditch after its construction none of the property of any of these plaintiffs is benefitted by the construction of said improvement, and the claim is made that it is unlawful taking of property without due compensation to assess or tax these plaintiffs for a benefit which they do not derive. In other words, that because they originally believed and thought that the improvement of this ditch would be a benefit and thus induced the county commissioners to make tha improvement and afterwards found that they were mistaken, and that it was not a benefit, that they can be relieved from an assessment which their own action and their own silence during the proceedings preliminary to the improvement and during the construction of the improvement led the county to make.

It will be noted that there is a great distinction not only between the case which is here present and the case just cited as to the facts, but there also is a very marked distinction between the two statutes granting the right of appeal. In the section providing for appeal from the action of the township trustees, the provision is:

‘: Any person interested in the location of such ditch or in the amount of compensation and damages determined upon by the trustees, may take an appeal from the proceedings of the trustees to the probate court of the county by giving, ’ ’ etc.,

while in Section 6469, the section granting an appeal from the final order or judgment of the county commissioners made in such proceeding, the language is:

“A person or corporation, aggrieved thereby, may appeal from a final order- or judgment of the county commissioners made in the proceeding and entered upon their journal, determining any of the following matters, viz:
‘ ‘ 1. Whether the ditch will be conducive to the public health, convenience, or welfare.
“2. Whether the route thereof is practicable.
“3. The compensation for land appropriated.
“4. The damage claimed to property affected by the improvement.”

We regard the contention made by the plaintiffs in this case, in view of the fact that it is now claimed that the ditch was not a benefit to any of that public who were particularly -interested in this ditch, namely, the property owners and farmers along the line of the same, that their complaint is a general complaint to the effect that said ditch was not conductive to the public health, convenience, or welfare. While there may be no evidence in the case upon the question of health, yet the whole burden of this petition is to the effect that it was not conductive to public convenience or welfare, but on the contrary was a detriment to public convenience or welfare. It will thus be apparent that that was a question at least preliminarily for the county commissioners to determine, and it was a question which, when determined by the county commissioners, if it gave grievance to any one interested, could have been appealed to the probate court as provided in this section just quoted. The distinction then between the case at bar and the case so strongly relied upon as authority for the relief sought in this petition is very apparent, and the able decision of Judge Crane in Stemen v. Hizey, supra, can .not be regarded by us as authority for granting the relief in the case at bar.

It seems to us that in view of the decision of the Supreme Court in Moody et al v. George et al, found in the 37th Ohio Law! Bulletin at page 189, and which apparently was based upon previous decisions of the Supreme Court, particularly the 45th O. S., 495, and the 37th O. S., 508, and in view of the decision of the same court in Commissioners of Putnam County et al v. Krauss et al, 53 O. S., 628, and in view of the further fact that the Supreme Court in Blue et al v. Wents et al, 54 O. S., at page 247, allowed the relief prayed for apparently solely upon the ground of fraud and collusion between the surveyor and the county commissioners, a thing which is not claimed or even hinted at in the case at bar, and of many decisions of courts inferior to the Supreme Court, we can come to but one conclusion as to the law of this case, and that is that in the absence of fraud or collusion a court of equity will not interfere and determine the question of benefits when the property owners interested have sat by and allowed the county commissioners to act in the manner which they have acted in this case. •

A strong appeal is made to the court that under Section 6500 the court has full power to act in this ease, even though there is no fraud or collusion, when a gross injustice in the apportionment is made to appear to the court, and the claim is made that gross injustice does appear in this ease because of the fact which, it is claimed is proven that no benefits have accrued to the property owners, but only damage has resulted. Upon this question of whether or not benefits have accrued the state of the testimony is entirely unsatisfactory. Much testimony has been introduced on both sides of the case; much of it to the effect that damage has resulted instead of benefit; much of it to the effect that damage only occurred at a time when there was an extraordinary rainfall or much snow and ice. Even if we were inclined to exercise the power Section 6500 apparently gives to the court we would not feel justified in exercising it arbitrarily, but only upon the clearest and most conclusive showing of damages, and we doubt if under these circumstances which the evidence in this case discloses a ease could be made under Section 6500 which would appeal to a court of equity, in. view of the fact that these property owners by their silence during the preliminary proceedings and the progress of this work apparently acquiesced in the work that was done; and we think that the remark of the court as contained in the 53rd Ohio State at page 634 is appropriate, the same being as follows:

“But our attention is called to Section 4491, Revised Statutes (Sec. 6500 G. C.), giving the court in which such proceeding is brought, power to enjoin an assessment. But the power conferred is not an arbitrary one. There must be a reason for the injunction — a case made. This petitian, .as we have shown, makes none.”

We are inclined to the belief that the laws of Ohio' relating to ditches and the construction of the same can not be used for experimental purposes; that they were not intended to allow or encourage communities who. wanted to make an improvement in their drainage to place this burden upon the county, upon the •assumption that it would be paid for if it proved successful and not paid for unless it proved successful; to make the county and the commissioners, who are in reality and .according to the theory of the law simply the agents for this purpose, guarantors to their principals of the success of an undertaking of this kind. Such a ruling is unfair to the county .at large and would encourage haphazard and ill-considered plans for public improvements. Holding these views, we feel that the relief sought for in this petition should be denied, and the injunction is dissolved and the petition dismissed ¡at the costs of the plaintiffs.

Grant, J., and Dunlap, J., concur.


text:
    AS TO THE VALIDITY OF MECHANIC’S LIENS FILED AFTER TIME.
    Court of Appeals for Hamilton County.
    Agnes Park v. The Williamson Heater Co. et al.

    Decided, May 20, 1918.

      Mechanic’s Liens — Lien Holders Protected Where Failure to Follow the Strict Letter of the Law Was Due to Deception Practiced by the Owner — Time for Filing Liens Where Work is Left Incomplete.

    1. The validity of a mechanic’s lien is not affected by failure of the contractor or material-man to follow the strict letter of the statute in the matter of furnishing to the owner or his agent a sworn and itemized statement as required by Section 1283, G. C., where such failure was due to deception practiced by the owner. In such a case the sending of a copy of the lien placed on record, addressed to the name used by the owner in making the contract, is a sufficient compliance with the statute and the lien so perfected will be held good.
    2. Where heating apparatus was placed in a building and nearly all of the labor performed in June, but the registers were not installed or connections made until November, the filing of a mechanic’s lien within sixty days of completion of the work was within the time prescribed by the statute.
    3. But where a plumber does a part of the work on a building and a year later files a lien, the work in the meantime having been completed by another plumber at the instance • of the owner, the lien is not filed within time and is void.
    4. The lien of a painter, who left the job unfinished and filed a lien more than sixty days after the furnishing of the last material and labor, is also void for failure to file within the prescribed time.

      Jas. B. Jordan and Hicks & Hicks, for Agnes Park.

      H. J. Buntin, for Williamson Pleater Co.

      Bates & Bates, for Nitzschman & David.

      G. S. Burdsall, for Gilbert Kerley and Max Liederman.

       Affirming in part Park v. Williamson Heater Co. et al, 20 N.P.(N.S.), 151.

   By the Court.

This action comes into this court on appeal .from the Court of Common Pleas of Hamilton County.

The original action was brought by Agnes Park against the Williamson Heater Co., Harry Nitzschman and Edward David, doing business under the firm name of Nitzschman & David, Gilbert Kerley and Max Liederman. Max Liederman was the principal contractor in the construction of a dwelling-house on Hawthorne avenue, in Cincinnati, Ohio; and the three sub-contractors, the Williamson Heater Co., Nitzschman & David and Gilbert Kerley, each claimed a mechanic’s lien of record against said premises.

Plaintiff’s action is one to quiet the title of the premises against these several liens.

Defendants by way of several cross-petitions seek to foreclose their liens.

Plaintiff claims that these liens of defendants are void for the reason that they were not filed within sixty days from the last of the material and labor furnished as required by G. C., 8314, and further that neither the head contractor nor the subcontractors made out and gave to the owner or her agent a sworn and itemized statement, as required by 'Section 1283 of the mechanic’s lien law. Plaintiff admits the receipt of notices of the filing of the several liens.

Without entering into a general discussion of the lien laws applicable to the case we shall content ourselves by saying that any defect on the part of the defendants in following the letter of the law and in furnishing sworn and itemized statements was due to the deception practiced by the plaintiff, and the service of the copj1' of the lien filed must be held to be a substantial compliance with this provision of the statute.

We are of the opinion that tire lien filed by the defendant the Williamson Heater Company was filed within sixty days from the furnishing of the last of the material and labor. The evidence shows that while all of the material was furnished and nearly all of the work and labor performed in the -month of June, 1914, some work was done by way of connecting up of the furnaces and installation of the registers by the heating company on the 28th day of November, 1914, and on December 5, 1914, the said Williamson Heater Company duly placed its mechanic’s lien on record in Hamilton county, Ohio, and on the same date a true copy thereof with the notice of the furnishing of the heating apparatus and cost thereof was addressed to "Anna Mey,” the name under which plaintiff had contracted for the construction of the house. This was in compliance with the statute and this lien must be found good.

The lien claimed by the defendants Nitzschm'an & David is based on their claim for plumbing. The evidence discloses that the last work performed by these defendants on the plumbing was in the fall of 1914; that there was certain work to be done on the plumbing, but that the same was never performed by the said defendants, but was procured by plaintiff or' her grantee to be done by other parties; that these defendants claimed they did not discover that some one else had done the work until April 18th, 1917. The mechanic’s lien claimed by these parties was placed upon record the 22d day of October, 1915. It is therefore clear that the lien having been placed on the property more than one year after the last work had been performed and material furnished, it was filed too late. Neither can they successfully claim a lien by reason of the unperformed part of the work, as there is no claim that a lien was filed after the discovery that the work had been done by others, and the lien is claimed only on account of labor and material furnished prior thereto. We must therefore hold this lien to be void and of no effect.

The same facts appear from the testimony of defendant Gilbert Kerley with reference to his claim for painting, 'except as to some little difference in the dates as to when the last work was done and the filing of the lien. The filing of Kerley’s lien, as shown by the evidence, was more than sixty days subsequent to the furnishing of any material or labor, and said defendant admits that the unfinished part of his contract, if any, has not yet been completed, in so far as he knows. It is therefore clear that no lien can he predicated upon the unfinished work.

We therefore hold that plaintiff is entitled to the relief prayed for, upon the payment of the claim of the Williamson Heater Company, and upon the failure to pay this money a decree in foreclosure and sale of the premises may be had to satisfy such claim; that the liens claimed -by the defendants Nitzsehman & David and Gilbert Eerley are void and of no effect, and the title may be quieted as against these two alleged liens.

Jones, P. J., and Hamilton, J., concur; Wilson, J., not participating.


author: Richards, J.

text:
    RECOVERY FOR LOSS FROM FIRE CAUSED BY A PASSING LOCOMOTIVE.
    Court of Appeals for Lucas County.
    Toledo Terminal Railway v. Clinton A. Mauk et al.

    Decided, June 24, 1918.

      Joinder — Insured and Insurer Proper Parties Plaintiff to Action for Recovery of Fire Loss Caused by Locomotive — Evidence that Sparks Were Emitted by More than One Locomotive Not Prejudicial — Competency of Evidence as to Sparks from Locomotive Failing to Set Fire to Combustible Material Placed Beside the Track — Section 8970.
    1. Section 8970, General Code, creating an absolute liability against a railway company for loss of property by fire on evidence showing that thd fire originated from sparks from an engine passing over its tracks, inures both to the owner of the property destroyed and by way of subrogation to insurance companies making payment to the owner for loss under policies of insurance issued by them, and -the owner and insurance companies may join as parties plaintiff in an action to recover losses so originating.
    2. Under the rule allowing the owner of property destroyed by fire from sparks from passing locomotives, considerable latitude in showing the particular circumstances existing from which the fire is caused, evidence that more than one locomotive of the defendant company emitted sparks on various occasions is not prejudicial in an action under Section 8970, General Code, to recover for fire loss from sparks emitted by a locomotive sufficiently identified as being in fault on the occasion in issue.
    3. Evidence in an action for fire loss from sparks from a locomotive of experiments made by expert witnesses, called by a defendant railway, to establish that certain substances placed along its right-of-way would not take fire from sparks, when not under conditions similar to those existing at the time of the fire complained of, is properly excluded.

      Potter & Carroll, for plaintiff in error.

      JSlmer JS. Davis, J. T7. Mooney and G. JS. Bibbee, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 19, 1918,

   Richards, J.

Clinton A. Mauk was the owner of a large quantity of lumber and the operator of a lumber yard all situated in the northerly part of the city of Toledo, most of the lumber being in two large sheds owned by the Ann Arbor Railway and a portion of the lumber being in another shed owned by Mr. Mauk. These sheds were located near various switching tracks of the Toledo Terminal Railway and other switching tracks of the Ann Arbor Railway. The property-was destroyed by fire on the night of October 15, 1916, the fire resulting in nearly a total loss. The property owned by Mr. Mauk was insured in several insurance companies to the amount of $38,000 and this amount wag paid by these companies to him. Thereupon Mr. Mauk and the nine insurance companies united as plaintiffs in an action against the Toledo. Terminal Railway to recover the value of the property destroyed by fire, the insurance companies claiming to be subrogated to the rights of Mr. Mauk to the extent of the sums paid by them severally. The petition was met by a motion to separately state and number the causes of action and to make more certain and definite, which motion was overruled by the court. Thereupon the defendant filed a demurrer to the petition on the grounds of a misjoinder of parties plaintiff and for the reason that several causes of action were improperly joined and for want of facts. This demurrer was overruled and an answer filed by the defendant. A trial of the case resulted in a verdict and judgment being rendered in favor of the plaintiffs in the amount of $70,000. We are asked to reverse this judgment for various reasons, -but chiefly because it is claimed that the court erred in overruling the motion and demurrer, and because the judgment- is not sustained by sufficient evidence, and because the court erred in the admission and exclusion of evidence and in the charge to the jury.

We have no difficulty in reaching the conclusion that the petition sets forth but one cause of action and that the same is set out with sufficient certainty. There was but one fire pleaded and that is averred to have been caused by sparks emitted from an engine of the railroad company. The cause of action was based on a single wrongful act. The owner of the property was, of course, the primary sufferer by reason of the fire an fino doubt can exist but that the insurance companies upon making payment under the- policies issued by them became subrogated to the rights of the assured to the extent of the payments so made. The averments of the petition show that the loss largely exceeded the amount of the insurance and it is, therefore, clear that not only the owner, but the insurance companies were interested in maintaining a suit against the defendant.

"While there are some differences in detail between this ease and the case of the Lake Erie & W. Ry. v. Falk, 62 Ohio St., 297, and while there has been some change' in the statute since the announcement of that decision, yet the principles therein set forth indicate very clearly the rules which should govern in the case at bar. It is claimed that under the statute, as it now reads, Section 8970, O. C., the railroad company is liable to the owner of the property absolutely, but that the liability to the insurance company arises only on averments and proof of negligence on the part of the railroad company. It is true that the statute cited provides that the company shall be liable for all loss or damage by fires originating on adjacent lands caused in whole or in part by sparks from an engine passing over such railroad, and the exercise by such company, or receiver of such company, of due care in equipping and operating such engine shall not exempt such company, or receiver of such company, from liability. This statute does create as against the railroad company an 'absolute liability on evidence showing that the fire originated from sparks from an engine passing over its railroad, but when an insurance company, having a policy upon property destroyed by fire from sparks com-' ing from an engine passing over a railroad adjoining the property, has made payment under its policy, it is by general prim ciples of equity subrogated to the rights of the assured and that subrogation is to all rights of the assured as against the railroad company to the extent" of the amount paid by the insurance company. It would seem clear, therefore, that the statute inures to the benefit of the insurance company so making payment as well as to the assured.

Manifestly all the rights given by the statute could be secured by the owner bringing an action against the railroad company, which is claimed to have caused the fire, in which action, whether he had received the amount of the insurance oil the property or not, he would be entitled, if the proof showed liability, to recover the full value of the property destroyed and this would raise an equity in favor of the insurance companies against the assured in the fund received by him from the railroad company.

Furthermore, a person whose property is insured and who suffers loss by reason of a fire has a right to assign his cause of action and the assignee would be entitled to all the benefits conferred by the section above cited and clearly whatever rights could be acquired and enforced indirectly may be enforced directly in an action by the assured and the companies which have made payment under their policies. In truth, the action at bar is an action by the owner of the property to recover the full amount of the loss from the railroad company, and the fact that the insurance companies are united with him as cop^intiffs can in no manner prejudice the rights of the railroad company, but enables the court to adjust the equities of the plaintiffs among themselves.

The rule is stated in Clement, Fire Insurance, 369, as follows : ;

“When a statute or code of practice authorizes suit in name of real party in interest, and a number of insurance companies are subrogated as equitable assignees of rights of insured against a railroad company, they may properly be joined as plaintiffs in an action against the latter to recover the loss or damage. If the insured has an interest or his whole loss was not paid by the insurance companies, he should be also joined as a party to the action, either as a plaintiff by his consent or as a defendant if he refuses.”

We hold in view of reason and authority that the owner and the insurance companies which have made payment may unite in an action against the railroad company where the total loss suffered exceeds the amount of the insurance on the property. It follows that the court committed no error in overruling the motion directed to the petition, nor in overruling the demurrer thereto.

A large mass of evidence was taken in this case bearing upon the manner in which the fire originated which caused the destruction of the property. The evidence shows that the fire originated in or near what is known as shed No. 1, one end of which was located within twenty-five or thirty feet of the tracks of the Toledo Terminal Railway, and the fire spread from this shed to the other two resulting in the destruction of all of them. These sheds were constructed of lumber and shed No. 1 had an open unboarded space about nine feet from the ground extefiding the entire distance around it.

The fire started about midnight on the night of October 15. It is in evidence that there had been no fires in these sheds during that fall, and although there was a stove in one of them, no fire had been ¡built therein since the preceding spring. Shortly before twelve o’clock on the night in question a switching engine belonging to the Toledo Terminal Railway passed back and forth by this property several times, part of the time hauling a train of cars and part of the time without any load. The engine was observed by a watchman, located in the vicinity, who testifies that when loaded the engine continually threw sparks; that he observed it on that night and had on numerous occasions prior to that time; and that the terminal engines all threw sparks when “working heavy and exhausting.”

The evidence shows beyond question- that the wind on that night Was blowing at the rate of fourteen to fifteen miles per hour and in the general direction from the terminal tracks toward these lumber sheds. The evidence discloses that the Ann Arbor Railway had no engine in operation during that day or night in this neighborhood except a passenger engine which traveled along the main track, many hundreds of feet distant from the shed in which the fire originated, and that engine passed some hours before the fire was seen. There is no evidence in the record showing any fires in that neighborhood during the day or night of October 15 except the sparks flying from the engine of the terminal railroad company. It also appears that an employee visited the yards at four o’clock on the afternoon before the fire and found the ¡buildings locked. We have no hesitancy in reaching the conclusion that the jury was entirely justified in finding that the fire originated from sparks coming from this engine. Indeed, we do not see how they could have reached any other result from the evidence contained in the record.

In the ease of Lake Shore M. S. Ry. v. Anderson, 7 C. C. (N.S.),17, the circuit court held that a jury is warranted in finding that a fire originating on land. adjacent to the railroad company’s right-of-way was started by sparks emitted from locomotives when the evidence shows that it originated very quickly after two locomotives had .passed along, that the day was windy, with the wind blowing from the railroad toward plaintiff’s land and of sufficient force to carry sparks thereon and that there were no other fires in the particular neighborhood at the time. All of the requirements mentioned by the court in that ease .exist in the case at bar and we are not, therefore, able to say that the verdict is not sustained by sufficient evidence.

It is said, however, that the verdict against the railroad company was produced because the court permitted the plaintiffs to introduce certain incompetent evidence and excluded from the jury certain competent evidence offered on behalf of that company. The evidence which the court allowed to be introduced, and against which objection is especially made, related to the engines of the terminal railroad company throwing sparks on other occasions within two or three weeks prior to the time of this fire. In view of the fact that the particular engine which passed along this track on that night was identified, we see no necessity for the plaintiff to introduce evidence that was broad enough to include any other engine than that one, but the evidence which was introduced did, in fact, include engine number seven which was the one that passed the sheds on the occasion, and we can see no prejudice resulting to the railroad company by the inclusion of evidence showing that other engines of the company also emitted sparks.

The courts have frequently indicated that in an action brought by a land owner to recover for destruction of his property by fire claimed to have been caused by sparks from passing engines considerable latitude should be allowed because of the usual inability of the plaintiff to specifically show the particular circumstances existing which caused the fire. This principle is stated in The Lakeside & M. Ry. v. Kelley, 10 C. C., 322, and was recognized by this court in The Hocking Val. Ry. v. James. 18 C.C.(N.S.), 210; (1 App., 335). The case of The Hanover Ins. Co. v. C., H. & D. Ry., 18 C.C.(N.S.), 502; (2 App., 136), decided by this court contains nothing inconsistent with what has just been stated. In that ease, as in this, we recognize that there should be either direct proof of facts establishing the plaintiff’s case or proof of facts from which liability may be reasonably presumed and that there can be no guessing by either court or jury.

The trial court excluded evidence of the results of certain experiments made by expert witnesses called by the railroad company to establish that certain substances placed along the right-of-way would not take fire from sparks emitted from passing engines. An examination of the 'evidence and offers to prove contained in the bill of exceptions shows that the experiments sought to be proven were not made under conditions sufficiently similar to those existing at the location of this fire and at the time of its occurrence to render the results of the experiments competent evidence. The inherent difficulty of reproducing conditions similar to those existing at the time and place of the fire made it practically impossible to render these experiments of value to the jury in ascertaining whether the property of Mr. Mauk was set on fire by sparks from the railroad company’s engine. It is said in Jones, Evidence, 1913 Ed., Section 410, that testimony ought not to be received as to experiments unless it shows they were under such conditions as to fairly illustrate the point in issue; and that from the nature of the ease the decision of this question must rest largely in the discretion of the trial judge. We find no prejudicial error in excluding evidence of the results of experiments made by these witnesses.

The railroad company sought to offer evidence that the lumber yards of Mr. Mauk had been, before the occasion of the fire, frequented by tramps and loafers and that fires had been seen in the yards on various occasions. This evidence was excluded by the trial court and is assigned as error. It must be noted that the trial judge did not exclude evidence as to whether any person had been in or about the yards or buildings on the day or night when the property was destroyed by fire. On the contrary, the trial judge allowed evidence of some unknown man passing along a path through the Mauk lumber yards at about the hour of eleven o’clock on the night of October 15. The evidence excluded related to occasions prior to the day of the fire and no offer was made to show the 'existence of any fire in or adjacent to the yards on October 15, or of tramps or other persons being in or about the same on that day. Furthermore, the railroad company did not offer to show the character or extent of any fire which had been theretofore seen in the lumber yards nor that the same was caused by' any improper person; for aught that appears in the questions and offers to prove, the fires which were seen may have been started by Mr. Mauk himself or his employees in cleaning up the lumber yards and may have been, and doubtless were, entirely under control. If all the evidence which was offered by the railroad company on this branch of the case had been .received it would only have shown that on prior occasions tramps and loafers had been seen'in the lumber yards and fires had been seen there prior to October 15, and from this evidence the jury could only have been asked to guess that the fire which destroyed the property might have originated from tramps or loafers starting fires on the premises. We think such evidence would not tend to show that the fire which originated on the night of October 15 was caused in that manner. A test of the admissibility of such evidence may be made by applying the rule to the plaintiffs in the trial court if we assume that the plaintiffs had been able to show only that engines of the railroad company were accustomed to emit sparks when hauling loads through these yards and on these switch tracks but were not. able to show that any engine had passed along the track near these yards on that day or evening. The plaintiffs manifestly would have fallen far short of making'a case and the jury could have only rendered a verdict in favor of the plaintiffs on such a showing by guessing as to the origin of the fire. For all these reasons we find that the trial court committed no error in excluding the class of evidence mentioned.

The defendant railroad company introduced evidence showing that the engine crew of the railroad company after observing the fire, went on the engine to the vicinity of the fire and the court permitted them to describe the conditions that they found existing at the time of their arrival, but excluded evidence of the purpose for which they had come. The offer made shows that the company desired to prove that they had come to the fire with apparatus attached to their engine for the purpose of aiding in extinguishing the fire but were unable to use the same because the fire was-then in the end of the shed most distant from the railroad tracks. The trial court committed no prejudicial error in excluding the purpose which the engine crew had in mind in going to the fire,'for that purpose could not aid the jury in ascertaining the liability or non-liability of the railroad company. The particular location of the fire was permitted to be shown by all witnesses who had knowledge of the same. It is not controverted that the shed in or near which the fire originated was three hundred and fifty feet in length and if the fire were, as claimed by the railroad company, in the farther end of the shed, it, of course, could not have been reached •by the hose attached to the locomotive engine and the purpose of the engine crew was immaterial.

Finding no prejudicial error, the judgment will be affirmed.

Chittenden, J., and Kinkade, J.; concur.