author: Matthews, P. J.

text:
    McIntosh, Appellee, v. Doddy et al., Appellants.
    (No. 6841
    Decided November 3, 1947.)

      Mr. Loyal S. Martin, for appellee.

      Mr. David L. Shannon, for appellants.
   Matthews, P. J.

The. plaintiff obtained a verdict for $2,500 on account of personal injuries inflicted by a dog. The trial court required a remittitur of one-third as a condition of overruling the motion for new trial. This was acceded to and judgment was rendered for $1666.66. It is from that judgment that this appeal was taken.

The defendants are husband and wife. In her petition, the plaintiff alleged that “they harbored a dog which they well knew was accustomed to attack and bite mankind, yet defendants wrongfully and negligently allowed said dog to go at large without being properly secured,” and this was followed by allegations of the attack by the dog and the injuries inflicted.

To the petition, the defendants filed a joint answer in which they denied generally its allegations.

However, at the opening of the trial the defendants admitted that “William Doddy, one of the two defendants, did live at the Melrose avenue address together with the other defendant, his wife. We will further admit that William Doddy owned a dog that was kept on the premises at Melrose avenue where he lived at his home.”

In defendants’ brief in this court, they say: “Defendant William. Doddy admitted liability and asked the jury to fix a reasonable amount to compensate plaintiff. Catherine Doddy denies liability, and at the close of all the evidence moved for -a dismissal of the petition against her.”

Certain errors at the trial are assigned for the reversal of the judgment, but before considering them, we deem it helpful to bring before us the state of the law of Ohio as'to liability for injuries inflicted by dogs. We start with the case of Hayes v. Smith, 62 Ohio St., 161, 56 N. E., 879, in which the court held that the gist of the common-law liability for injury by a dog was the negligent harboring of the dog after knowledge of his vicious propensities.

Legislation to broaden the liability of the keeper of a dog was enacted in the month following the announcement of the decision of Hayes v. Smith, supra. By this legislation, it was provided that the owner or harborer of any dog “shall be jointly and severally liable to any person so damaged to the full amount of the injury done.” 94 Ohio Laws, 118. With some unimportant changes in wording this is now Section 5838, General Code. ■ x

In Kleybolte v. Buff on, 89 Ohio St., 61, 105 N. E., 192, that section came under consideration by the Supreme Court for the first time, and the court held as stated in the syllabus:

“1. In an action brought under Section 4212-2, Revised Statutes (General Code, Sections 5838 and 5839), for injuries inflicted by a dog, punitive or exemplary damages are not recoverable.

“2. In such an action, evidence tending to show the dog had bitten another person prior to the time that the plaintiff was bitten, and that defendant had knowledge thereof, is inadmissible.”

Although the petition in Kleybolte v. Buff on, supra, alleged that the defendant had negligently allowed the dog to go at large, there was no allegation that the dog was vicious or that the defendant had had prior knowledge of any viciousness, which are necessary allegations in the statement of a common-law action or to justify the award of punitive damages. However, at the trial, evidence was introduced by the plaintiff, over the objection of defendant, that the dog had bitten another person, of which the defendant had knowledge. In concluding that that was an action relying solely upon the statute, the court called attention to the fact that the trial court, at the plaintiff’s request, charged the jury that the mere ownership of the dog created a liability, and also to the fact that the plaintiff prayed that the court order the dog to be killed as provided by the statute. And concluding that exemplary damages could not be assessed, the court said that such damages were assessable where the elements of fraud, malice, or insult were present, and that in the case “None of these elements were pleaded, nor was there an averment that there was wilfulness, wantonness or recklessness on the part of the owner.”

The application of the statute next came before the Supreme Court in Silverglade v. Von Rohr, 107 Ohio St., 75, 140 N. E., 669. In the petition in that case, it was alleged that the defendant owned and harbored “a known vicious and dangerous dog * * * which habitually ran after automobiles,” and that this dog caused the plaintiff’s automobile to collide with a tree resulting in injuries to the plaintiff. The court reaffirmed the doctrine of Kleybolte v. Buff on, supra, that the liability of the owner or harborer of a dog was in.no sense dependent upon negligence. One of the errors assigned was as to the charge on the measure of damage. Without stating whether, in a case in which it appeared that the defendant had negligently harbored a dog after acquiring knowledge of his vicious character, any damage beyond compensation could be assessed, the court analyzed the charge given, and, while not commending the charge, found that it limited recovery to compensation for the injuries received, and, therefore, was not prejudicial to the defendant.

Next, the Supreme Court held in Lisk, Admr., v. Hora, 109 Ohio St., 519, 143 N. E., 545, that the common-law action for damages resulting from injuries, which the owner by his negligence permits the dog to commit, had not been abolished by Section 5838, General Code. The action was against the owner for the wrongful death of the plaintiff’s decedent caused by tfye bite of the dog. The trial court had held that it was sufficient for the plaintiff to prove that the defendant owned the dog, that the dog had bitten the plaintiff’s decedent, and that death resulted therefrom. The Court of Appeals reversed the judgment for plaintiff, holding that in order to recover under the wrongful death statute (Section 10770 et seq., General Code) it was necessary to prove the elements of a common-law action for negligently harboring a vicious dog after his savage nature had become known to the harborer. Which court was correct was. the question presented to the Supreme Court, and in answering that question the court held that both common-law and statutory actions for damagé resulting from the behaviour of dogs still exist in Ohio, and that each is based on the wrongful act of the owner and furnishes a sufficient predicate for an action for wrongfully causing death. The court, therefore, held that no error, prejudicial to the defendant, was committed by the trial court in holding that it was sufficient for the plaintiff to prove the element of the statutory action.

Dragonette v. Brandes, 135 Ohio St., 223, 20 N. E. (2d), 367, is the last case in this category to come'before the Supreme Court. The court, in addition to reiterating that Section 5838, General Code, imposes an absolute liability, and that the plaintiff is not required to prove scienter, fault or negligence on the part of the defendant, held contributory negligence was not a defense in such an action.

From that review of the decisions of the Supreme Court, we deduce the following

(1) That Section 5838, General Code, creates a cause of action against the owner or harborer of a dog for all damage done by it regardless of its nature or the knowledge or care of the owner or harborer, in other words, that the liability is absolute, and that contributory negligence is not a defense.

(2) That the cause of action created by Section 5838, General Code, is limited to a recovery of the actual damage, thereby excluding any recovery of punitive or exemplary damage.

(3) That there still exists in Ohio the common-law action for damage resulting from negligent keeping of a vicious dog after knowledge of his vicious nature.

(4) That' in an action in which only the bare essentials of an action for recovery under the statute are alleged, evidence of the vicious nature of the dog, the knowledge of the owner of its vicious nature, and of the care or lack of care in keeping the dog is irrelevant and inadmissible to augment the damage beyond compensation.

(5) In an action in which the additional elements necessary to state a cominon-law action for negligently harboring a vicious dog after knowledge of its vicious nature are alleged, such evidence is not only competent but essential in order to prove all the elements of the cause of action.

(6) That it is not necessary in these cases any more than in any other action under the Code of Civil Procedure to plead the law or to designate in any way whether the action is based on a statute or on the common law as administered in this state.

(7) That in order to ascertain the measure of damage in an action based on the common law, it is necessary to have recourse to the common law. Whether punitive or other damage is recoverable is determined by that law.

Now it strikes one at once that the common-law action includes all the elements of the statutory action and in addition the elements of scienter and negligence. And we think it is correct to say that where a petition contains all the elements of a common-law action bnt the proof covers the statutory elements only, the court would not dismiss the plaintiff, but would award to him the relief to which the proof entitled him, that is, compensation for the injury received. That would be the relief to which he would be entitled on the cause of action pleaded, shorn of the allegations of scienter and negligence, which he had failed to prove. And those allegations would be treated as surplusage.

Now, why would a plaintiff, bringing his action within the period allowed for either action, assume the difficult burden of proving the additional allegations of scientef and negligence? The only conceivable- reason is that he would hope to recover beyond the recovery possible in the action based on the statute alone. And as' he could recover full compensation in an action based on the statute the only way to increase the recovery would be by assessing punitive or exemplary damages.

That brings us to a consideration of whether damage beyond compensation was recoverable at common law for negligently harboring a vicious dog.

Michigan early passed a' statute dispensing with scienter as an element in cases of this sort. In an action arising after this statute was passed, the Supreme Court of Michigan held as stated in the syllabus to the case of Swift v. Applebone, 23 Mich., 252, that:.

“In an action for damages for an injury inflicted by a vicious dog, even upon a count under the statute where the liability does not depend upon the scienter, the fact of knowledge in the owner of the vicious disposition of his dog is a proper subject to be taken into account and weighed by the jury in estimating the damages; and evidence of such knowledge is, therefore, competent. Recklessness, of conduct or the want of due and reasonable care is an important element in estimating the damages in such a case, as it is in most eases of tort.”

Justice Cooley wrote the opinion in Swift v. Applebone, supra, and it was concurred in by all the other justices, including Chief Justice Campbell and Justice Christiancy, constituting a court of pre-eminent ability. At no place in the opinion are the words “punitive” or “exemplary” used. In discussing the subject of the competency of evidence of scienter in this case in which the statute imposed an absolute liability for damage caused by a dog, the court held that the evidence was competent on the issue of the amount of damage to be assessed. As scienter on the.part of defendant could not in the nature of things add to or subtract from the injury suffered by the plaintiff, the court must have had in mind adding something to the compensatory damage because of the wilful or reckless disregard by the defendant of the rights of others.

In 2 American Jurisprudence, 746, it is said on the subject of punitive damages in cases of this sort that:

“When the vicious nature of a dog is known to the owner, he is liable for punitive as well as compensatory damages.”

So we conclude that in an action for damages caused by a vicious dog, the owner or harborer who-knows of its vicious nature and negligently keeps it, may have assessed against him punitive damages in addition to compensatory damages.

Now, in the case at bar, the court, both by special charge and the general charge, made the liability of the defendant Catherine Doddy depend upon proof of negligence in keeping the dog after acquiring knowledge of its vicious character, and the issues of contributory negligence and proximate cause. The plaintiff had made the allegations in her petition, the defendants had traversed them, and the court submitted the issues as made by the parties. On all these issues the jury found against the defendants. In so finding the jury found that the defendant Catherine Doddy had harbored the dog. The fact that it also found that the dog was vicious and that the harboring was negligent and occurred after she had knowledge of its viciousness, certainly is not prejudicial to such •defendant.

The plaintiff introduced evidence, over the defendants’ objection, of other incidents of this dog attacking others, and of the defendant Catherine Doddy being present on such occasions and of her exercising control over the dog. This evidence was made the subject of comment by plaintiff’s counsel in his opening statement and in his closing argument. It is claimed that the admitting of such evidence was error and that the comments of counsel constituted misconduct.

In order to recover against Catherine Doddy it was necessary for the plaintiff to prove that., she owned or harbored the dog. She denied that she was either the owner or harborer. A wife may be the harborer of a dog owned by her husband. Sawrey v. Grant, 31 Ohio App., 14, 165 N. E., 97. But, of course, that liability does not arise by reason of the relation of husband and wife, but because of the conduct of the wife in relation to the dog. Evidence of that conduct is, therefore, relevant on the issue of whether she had harbored the dog. In Lisk, Admr., v. Hora, supra, evidence that the dog had bitten another person and that defendant had directéd such person to go to ,a certain doctor was admitted and, “this, .apparently, was for the purpose of showing the ownership.” If such evidence was competent to show ownership, it certainly is competent to show harboring. The fact that it also tended to show that the dog was vicious, which might not be in issue, would not render it inadmissible to prove that which was in issue.

We, therefore, hold that the testimony as to prior instances showing the conduct of Catherine Doddy toward the dog was competent on the issue of whether she had harbored the dog.

We are not prepared to hold that it would not be admissible on the issue of whether punitive damages should be assessed, had that issue been submitted to the jury. However, we find that while the court imposed upon' the plaintiff the burden of proving, that the defendant had negligently kept the dog after receiving knowledge of its vicious nature, it nevertheless limited the right of recovery to compensatory damages and specifically refused to charge the jury on the subject of punitive damage.

The defendants claim that the judgment is excessive.

We have examined the evidence on the subject of the plaintiff’s injuries and. are not prepared to hold that the amount of the verdict was excessive. We would not have disturbed a judgment for that amount. We do not believe a judgment for two-thirds that amount is prejudicial to defendants.

The defendants also assert that plaintiff’s counsel was guilty of misconduct. Most of the remarks, which form the predicate of this claim, related' to the conduct of Catherine Doddy toward this dog when it had bitten another person. We have held that this evidence was competent and, therefore, the remarks related to that which was properly in evidence.

The court sustained the defendants’ objection to some of the remarks of plaintiff ’s counsel, but we do not think that they required the withdrawal of a juror by the trial court, or the reversal of the judgment by this court.

We find no prejudicial error in the record.

The judgment is affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


source: Caselaw Access Project

author: Middleton, J.

license: Public Domain

text:
    Heebsch, Exr., Appellee, v. Lonsway et al., Appellants.
    (No. 314
    Decided June 5, 1947.)

      Messrs. Carpenter d> Carpenter, for appellee.

      Messrs. Spitler é> Flynn and Mr. Francis M. Marley, for appellants.
   Middleton, J.

This is an appeal on questions of law, from a judgment of the Common Pleas Court of Seneca county, in which appeal it is sought to reverse the judgment of that court construing a will.

The case was submitted below, on the following agreed statement of facts:

“It is admitted by the parties hereto that the facts, in this case are as follows:

“That one Robert B. McClellan, a resident of the city of Tiffin, Ohio, died on the 30th day of May, 1945, leaving a will, which was duly admitted to probate by the Probate Court of Seneca county, Ohio, on the-15th day of June, 1945, and that on said date, letters, testamentary were duly issued by the Probate Court to the plaintiff who is now the duly qualified and acting executor of said estate. That a copy of said will,, which is attached to the petition in this action, marked' ‘exhibit A,’ is-a true and correct copy of the last will and testament of Robert B. McClellan, deceased.

“That the defendants, Florence Lonsway, Mabel (Lonsway) Yonker, Ethel (Lonsway) Cunningham and Edith Hollingshead, are the only living legatees and devisees named in said will. That the legatee and' devisee, Marrie Grabach, named in item second and third of said will, died on January 23, 1945, being a nonrelative of the deceased testator. That the defendants named in this action, Florence Lonsway, Mabel (Lonsway) Yonker, Ethel (Lonsway) Cunningham, and Edith Hollingshead, are related to Robert B. McClellan, deceased, being cousins of said deceased.

“That the defendant Mary E. Ritchie, is a sister of the deceased. .That the defendants, Faye Lovell, Mrytle Krutsinger, Pearl Krutsinger, Blanche Niswander, Clarence Chandler and Ray Chandler, are all ■of the nephews and nieces of the deceased; and they .and Mary E. Ritchie, his sister, are all of the next of kin of Robert B. McClellan, deceased. That the defendants, Faye Lovell, Mrytle Krutsinger, Pearl Krutsinger, Blanche Niswander, Clarence Chandler and Ray Chandler, are all of the children of their deceased mother, who was a sister of the said Robert B. McClellan, deceased.

“That the appraised value of the real and personal property of deceased’s estate amounted to the sum of :$21,822.73, and that all of the creditors have been fully paid and satisfied.”

The will of Robert B. McClellan, omitting the formal parts, is as follows:

“First. I direct that all my just debts and funeral ■expenses be paid out of my estate as soon as practicable after the time of my decease.

“Second, fit is my will and I hereby authorize ■and empower my executor hereinafter named to pay. to my housekeeper, Marrie Grabach, the sum of two ($2) dollars per week beginning January 29, 1934, for each and every week she has kept house for me ■during my lifetime.

“Third. All the property, real and personal, of ■every kind and description, wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to the following persons, to wit: One-fifth to Florence Lonsway of Fostoria, Ohio; one-fifth to Mabel {Lonsway) Yonker, of Fostoria, Ohio; one-fifth to Ethel (Lonsway) Cunningham of Fostoria, Ohio;, one-fifth to Edith Hollingshead of Fostoria, Ohio;, and one-fifth to Marrie Grabach, who is my present housekeeper.

“Fourth. I give my executor hereinafter named,, the power to sell any and all of my real estate that I may die possessed of without the intervention of any court, at either private or public sale as he may deem for the best interest of my estate, and I hereby authorize and empower him to make good and sufficient deed or deeds therefor.

“Fifth. I hereby request that my executor hereinafter named be given two years time in which to-sell my farm containing about one hundred and sixty-two (162) acres of land located in Seneca township,. Seneca county, and state of Ohio. And I further request that my executor hereinafter named rent the said farm to Henry Ward, the present tenant, for a period of two years upon the same terms and conditions the said farm is now rented. However, should the said Henry Ward, decide not to lease the said farm after my decease, I repose confidence in my executor -hereinafter named, that he will lease the-said farm to the best of his ability.”

The court is asked to construe items two and three of the will.

The court below, in construing those items, held that item three constituted a residuary clause, for the residue of the estate of the testator, to Florence Lonsway, Mabel (Lonsway) Yonker, Ethel (Lonsway) Cunningham, Edith Hollingshead and Marrie E; Grabach, and that Marrie E.' Grabach died before the-testator and, being a nonrelative of the testator, her interest in the residuary estate lapsed, and the surviving legatees and devisees, Florence Lonsway, Mabel (Lonsway) Yonker, Ethel (Lonsway) Cunningham and Edith Hollingshead took the lapsed portion of the residuary estate in equal portions.

The court found further that item two of the will did not constitute a bequest, but was a statement of a debt due from the testator to Marrie E. Grabach and the personal representatives of Marrie E. Grabach,, who is now deceased, are entitled to be paid the-amount of the debt.

The only error assigned and argued in the brief of the defendants, appellants herein, is that the judgment of the court below is not sustained by sufficient evidence and is contrary to law.

It is agreed that Marrie E. Grabach was not a child or other relative of the testator, and that she died before the testator.

It is also agreed that the bequests to Marrie E'.. Grabach, in item two and item three lapsed upon her death, prior to the death of the testator.

It is the contention of plaintiff, appellee herein, that item two is an acknowledgment of a debt, and not a bequest.

Item one of the will provides for the payment of the debts of the decedent.

Item two authorizes and empowers the executor to pay to Marrie Grabach the sum of two dollars per week, beginning on January 29, 1934, for each and every week she kept house for the testator.

Prior to the death of Marrie Grabach she and the testator entered into an agreement, by the terms of which Marrie Grabach acknowledged that she had been fully paid, and that the testator was not indebted to her in any sum. Then follows a provision for the. maintenance of Marrie Grabach for the remainder of her life. This agreement was entered into on May 12, 1940.

Marrie Grabach died in January 1945, and the testator died in May 1945.

If item two were an acknowledgment of a debt, the debt was extinguished by that agreement; and if a debt and extinguished by the agreement, the testator had nearly five years in which to change this item if he so desired.

However, it is the opinion of this court that item two is not an acknowledgment, of a debt, but is a bequest in the nature of a gift.

Section 10504-73, General Code, is determinative pf the questions involved in this case. This section provides as follows:

“Sec. 10504-73. When a devise of real or personal •estate is made to a child or other relative of the testator, if such child or other relative was dead át the time the will was made, or dies thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised as the devisee would have done, if he had survived the testator. If such devisee leaves no issue and the devise be of a residuary estate or of the entire estate after (a) debts, (b) other legacies and devises, general or specific, (c) a life estate, or (d) any other interest less than a fee or absolute ownership, to such devisee and one or more children or relatives of the testator, the estate devised shall pass to and vest in such ‘other devisee or ■devisees surviving the testator in such proportions as the testamentary share of each devisee in the devised property bears to the total of the shares of all of the surviving devisees, unless a different disposition be made or required by the will.”

There is no ambiguity in the language used in item three of the will, and there is no need of applying any of the rules of construction in construing this item, as the language is clear and unambiguous and subject to but one construction.

Applying the provisions of Section 10504-73, General Code (which uses the term “devise” in its broad meaning to include both devise and bequest), we find Marrie Grabach was a devisee of both real and personal estates; that she was not a child or other relative of the testator; and that she died after the will was executed, and before the death of the testator.

The second sentence of Section 10504-73, General Code, provides for the disposition of a devise made-to a child or other relative who dies leaving no issue., and the devise is to a residuary estate, etc.

The expression “if such devisee,” used in the second sentence, refers back to the “child or other relative” mentioned in the first sentence of the section.

The second sentence of the section, therefore, has no application to the case at bar.

“Where a devisee or legatee in a will dies prior to the testator, such devisee or legatee not being a child or other relative of the testator within the terms of Section 10581, General Code, and such will contains no residuary clause nor any provision showing any other intention of the testator, such legacy or devise lapses and such testator dies intestate as to such property named in such legacy or devise.” Foreman, Admx., v. Medina County National Bank, 119 Ohio St., 17, 162 N. E., 42.

Section 10504-73, General Code, makes an exception to the rule that a devise to a deceased person lapses, only in the case of relatives of the testator.

“Testatrix’s intention is of paramount importance* but it must bo determined from the language of the will and applied to facts existing at time will was written, or possibly at testatrix’s death.” Nelson v. Minton, Exr., 46 Ohio App., 39, 187 N. E., 576.

Also, on page 40 of the opinion it is stated:

“While the intention of the testatrix is of paramount importance — over every other consideration— lit must be ascertained from the language used, applied to the facts existing at the time of the writing (Of the will, or possibly at her death.

“ Courts cannot interpolate words or phrases into ■a will. To do so is to write what the testatrix has not written. It is the written will that the court must construe.

“While courts will avoid intestacy, if possible, the «desire to do so cannot prevent a lapse, where words «constituting testate disposition are lacking.

“Now in this case the testatrix knew the devisees in question were dead when she signed the will. She also is presumed to know that devises to them lapsed and were void.”

It is, therefore, the finding of this court that:

First. Robert B. McClellan died leaving a last will and testament which was duly admitted to probate in the Probate Court of Seneca county, Ohio.

Second. Item two constituted a bequest to Marrie Grabach, which bequest lapsed upon the death of Marrie Grabach and became a part of the residuary estate.

Third. Item three is a residuary clause and bequeathed and devised the residue of the estate of Robert B. McClellan, to Florence Lonsway, an undivided one-fifth; Mabel (Lonsway) Yonker, an undivided one-fifth; Ethel (Lonsway) Cunningham, an ¡.undivided one-fifth; Edith Hollingshead, an undivided one-fifth; and to Marrie Grabaeh, an undivided one-fifth. The bequest devised to Marrie Grabach, of an undivided one-fifth, lapsed upon the death of Marrie Grabaeh.

Fourth. Marrie Grabaeh died prior to the death of Robert B. McClellan, and was not the child or other relative of the testator.

Fifth. Robert B. McClellan died intestate as to the lapsed one-fifth of the residue of his estate.

Sixth. The lapsed one-fifth of the residue of the estate, set out in item three, descended by operation of law to the next of kin of testator.

The court finds error in the judgment of the court below, in that the judgment is contrary to law.

The controlling facts in this action are conceded, and as the error of the court lies in the application of the law, this court renders final judgment and it is ordered that the plaintiff make distribution of the estate in accordance with this opinion.

Judgment reversed.

Jackson, P. J., and Guernsey, J., concur.


author: By the Court.

text:
    In re Estate of Burgoon.
    (No. 338
    Decided January 31, 1947.)

      Mr. Otto W. Hess and Mr. George A. Meekison, for appellant.

      Mr. James Donovan, Jr., and Mr. Laiorence C. Warden, for appellee.
   By the Court.

Tlae appeal in this case is from an order of the Probate Division of the Court of Common Pleas of Henry county, overruling the motion of appellant, Martin L, Burgoon, to set aside the inventory and appraisement and to order a reappraisement of lot No. 19 in Alpheus Burgoon’s first addition to the village of Liberty Center, Ohio, being real estate owned by Mary Burgoon at the time of her death.

The deceased was the wife of the appellant.

On such lot 19 are located two buildings, one a dwelling house used by appellant and his wife as a mansion house, and the other a cement-block building used for business purposes.

In the inventory and appraisement lot No. 19 was appraised at the sum of $4,500.

The purpose of the action asking a reappraisement of lot No. 19 is to cause the real estate to be appraised in two parcels, one consisting of the mansion house and the other consisting of the business block. This is desired by the appellant in order that he may elect to purchase the mansion house at the appraised value, pursuant to the provisions of Section 10509-89, General Code, the pertinent part of which reads as follows:

“At any time within one month after the approval of the inventory, the surviving spouse, if any, whether acting as executor or administrator, or not, shall have the right to purchase the following property, if left by the decedent and if not specifically devised or bequeathed.

“(a) The mansion house, including the parcel of land on which the same is situated and lots of farm land adjacent thereto and used in conjunction therewith as the home of the decedent, and the household goods contained therein, at the appraised value as fixed by the appraisers.”

Subsequent to the appraisement of the real estate in question, the appellant gave notice of his election to purchase lot No. 19 at the appraised value.

The court denied the appellant’s petition to purchase, by reason of the fact that on such lot was located a business building which could not be considered as a part of “the mansion house, including the parcel of land on which the,same is situated,” as defined in Section 10509-89, General Code.

On appeal this court affirmed that order.

The privilege of a surviving spouse to elect to take the mansion house at the appraised value is a valuable right granted by the Legislature. This right may not be denied by the court unless the surviving spouse has voluntarily relinquished the right, or by some act is estopped from asserting the right.

Section 10509-61, General Code, provides as follows:

“When the inventory has been approved by the court, the appraisement of the real estate as set forth therein, shall be conclusive for all purposes except inheritance tax unless a reappraisal is ordered by the court.”

It will be noted that there is no time set forth in the Code within which the court may order such reappraisement, and the power to order such re'appraisement is within the sound discretion of the court.

In the instant case the surviving spouse filed his petition to elect to purchase the mansion house within the time prescribed by the court. The court denied the petition, for the reasons hereinbefore stated, to wit, that the real estate included also business property. Thereupon the surviving spouse filed his motion to set aside the inventory and appraisement and for a reappraisement, to meet the objections found by the court to the granting of his petition.

The probate division overruled that motion on the theory that, since the movant/ as administrator of the decedent’s estate, had caused lot 19 to be inventoried and appraised as one parcel of real estate and the court had overruled exceptions filed by certain of the heirs to such inventory and appraisement, on the hearing of which the exceptors had attempted to show valuations of the lot divided into two parcels, the movant was responsible for the inventory and appraisement of the lot as one parcel and was thereby precluded or estopped from complaining of the inventory and appraisement.

In support of that decision the court relied on the decisions in the following cases: Sprankle, Jr., v. Odell, Admr., 22 C. C. (N. S.), 233, 33 C. D., 540; In re Estate of Wallick, 29 Ohio Law Abs., 392.

An examination of the first case shows that the exceptor to the inventory and appraisement had, prior to his filing exceptions, been the administrator of the estate; that he, in his capacity as administrator, and by agreement with his mother, widow of the decedent, had instructed the appraisers to make a low appraisement of the estate in order to minimize the tax due-thereon; that after the appraisal was thus effected the widow took a large part of the property at the appraised value; and that the exceptor, after his removal as administrator, had, personally, excepted to the appraisal and asked for reappraisal on the ground that the appraisal was admittedly too low.

The exceptor’s action, in making the agreement above mentioned, with his mother, and having, pursuant thereto, had the appraisal made to minimize taxes on the estate, constituted a fraud on the'Probate Court, and it was properly held that he could not have-relief.

An examination of the second case cited shows that the exceptions in question were filed to the finál ac-„ count of the executor of the estate, on the ground that the exceptor was the owner of property included in the inventory. It further shows the court determined that under the provisions of Section 10509-59, General Code, the exceptor was a “person” who is required to file exceptions to ah inventory in order to preserve rights to property belonging to him, inventoried as a part of an estate, that the exceptor failed to file exceptions to the inventory, and that, as the property claimed by him was included in the inventory with his knowledge and he was a required party, he was precluded by the adjudication confirming the inventory from excepting to the final account of the executor, on the ground that property included in the inventory was his property.

Neither of the cases cited are applicable to the facts of the instant case.

The instant case does not involve any element of fraud on the court. The movant, at the time the inventory and appraisement was made, the exceptions thereto filed and heard and the inventory and appraisement approved • by the court, was obviously of the honest, although mistaken, opinion that the whole of the lot was comprehended in the homestead he had, under the law, the right as surviving spouse to elect to take.

Immediately following the decision of this court affirming the judgment of the probate division that such homestead did not include that part of lot No. 19 on which the cement-block building is located, and before there was any change in position to his or her detriment on the part of anyone occasioned by any action or failure to act upon the part of the administrator, the movant filed his motion for a reappraisement in order to make it possible for him to exercise his right of election to the homestead.

There is, therefore, nothing in the' record in this case which justifies a denial of appellant’s motion for a reappraisement. By such denial, the appellant would be denied the right given him by the Code to elect to take the mansion house at the appraised value.

The order of the court overruling appellant’s motion to set aside the inventory and appraisement and to order a reappraisement was an abuse of discretion.

The agreed statement of facts set forth in the record shows that lot No. 19 is situated on East street and has 120-foot frontage on such street; that the, business block occupies the entire southern portion of the lot and fronts 46 feet on East street; that immediately north of the cement-block building is a driveway 10 feet wide, running the entire .length of the lot; and that the remainder of the lot lying north of the driveway is occupied by the dwelling house and appurtenances thereto.

The agreed statement of facts sets forth that the portion of the lot occupied by the mansion house is that portion of lot No. 19 lying north of the 10-foot driveway. The court below should have granted the motion of the surviving spouse and set aside the former inventory and appraisement and ordered a reappraisement of the two parcels, to wit, the portion of the lot lying north of the driveway and the remaining portion of the lot lying south of and including such driveway.

The judgment of the court overruling appellant’s motion is reversed at costs of appellee, and this cause is remanded for further proceedings according to law, in conformity with this opinion.

Judgment reversed.

Middleton, P.. J., Jackson and Guernsey, JJ., concur.


author: Doyle, P. J.

text:
    Hill, a Minor, Appellee, v. Skinner et al., Appellants.

      (No. 3880
    Decided November 26, 1947.)

      Mr. Robert C. Ryder, for appellee.

      Messrs. Mots & Morris, for appellants.
   Doyle, P. J.

This is an action under the Ohio statute (Section 5838, General Code), seeking to hold the owners and harborers of a dog called “Chang” with liability for damages arising out of an episode in which the dog, Chang, is alleged to have seized with his teeth and injured a youngster aged approximately four, the petitioner herein.

A jury, upon trial, awarded damages in the amount ■of $500. The judgment rendered thereon, in the Court •of Common Pleas of Summit county, is a part of the final order from which this appeal is taken, and consideration will be first given to the legality of this money judgment.

1. The appellants say “There was no evidence'of a <bite’ anywhere in the record from any of the witnesses save the plaintiff himself. Without this * * * minor’s testimony there was evidence of injury only with barbed wire, glass, a gashed steel barrel and other dogs being present as explanation.”

It is a fact that there is no direct testimony of this dog’s attack' except that given by the child. If this evidence has probative worth, and is competent, it, coupled with the circumstances and other facts shown to exist, is sufficient to furnish the degree of proof necessary to sustain the judgment.

Section 11493, General Code, reads:

“All persons are competent witnesses except those-of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of . the facts and transactions respecting which they are-examined, or of relating them truly.”

. The Supreme Court of this state has recently ruled on that part of this statute pertaining to witnesses claimed to be of “unsound mind.”

“2. The competency of an insane person to testify as a witness lies in the discretion of the trial judgeN and a reviewing court will not disturb the ruling thereon where there.is no abuse of discretion.” State v. Wildman, 145 Ohio St., 379, 61 N. E. (2d), 790.

And in 2 Wigmore on Evidence (3 Ed.), Section 505, it is said:

“With reference to the general capacity to observe, recollect, and narrate, the same principles apply to-Mental Immaturity that are applied to Mental Derangement. ’ ’

The essential test of the competency of an infant witness is his comprehension of the obligation to tell the truth and his intellectual capacity of observation, recollection and communication. The nature of his conception of the obligation to tell the. truth is of little importance if he shows that he will fulfill the obligation to speak truthfully as a duty which he owes a Diety or something held in reverence or regard, and if he has the intellectual capacity to communicate his-observations and experiences.

The trial court, in. chambers, examined the child at length, touching upon his qualifications to testify.. Among other questions he was asked: “Do you know about telling the truth, what happens if you don’t tell the truth?” and he answered, “They won’t love me.”' Question: “Who won’t love you?” Answer: “God won’t love me.” And in further answer to dozens of questions propounded by both' the judge and counsel, the child demonstrated a capacity for memory of events, observation, recollection and communication.

Following this necessary and proper examination by the trial judge of the prospective witness, the court permitted him to testify. The child thereupon, upon direct examination, testified in part as follows: “Q. Cary do you remember when you went over to Skinner’s? A. Sure.

“Q. Tell the judge and jury what happened. A. The doggy bit me.

“Q. What doggy bit you? A. Skinner’s doggy.

“Q. What were you doing with Skinner’s dog? A. I was loving him. ,

£iQ. How? A. Like that, (indicating.)

“Q. You mean around his neck? A. Yes.”

On cross-examination appears the following:

££Q. Where did Chang bite you, can you tell the ladies, take your fingers and show me where he bit. you? A. He bit me when I was loving him.

“Q. Where did he bite you, did he bite you on the leg? A. No, he bite me on the head and on my mouth here, (indicating.)”

As we view the testimony, the youthful narrator, except for a few nonresponsive answers, clearly described and explained the circumstances giving rise to this action. The evidence considered as a whole describes the wandering of the child out onto his neighbor’s yard and the subsequent attack of the dog, under circumstances clearly related by the child. There is nothing in the record to show, except through pure guess and speculation, that the head injuries resulted from any other cause.

Paraphrasing a syllabus in State v. Wildman, supra, to fit this case, the rule may be pronounced to be that the competency of a child of mental immaturity to testify as a witness lies in the discretion of the trial judge, and a reviewing court will not disturb the ruling thereon when.there is no abuse of discretion. In the instant case we find no such abuse. We further find that the evidence in the record is such as to warrant the jury in finding in favor of the petitioner.

Complaint is further made by the appellants, that prejudicial error intervened in permitting the mother of the child to testify that, as the child was held in, a bathtub in her home shortly after the injury, she said to him, “What happened, sweetheart?” and he answered, “Doggy bife me.”

Of course, if this evidence is proper it is only so because of the exception to the hearsay rule which treats of a class of testimony termed the “res gestae,” admissible in evidence, though in fact hearsay.

• The evidence was improperly admitted. It was not a spontaneous or impulsive statement or exclamation. Bake v. Industrial Commission, 135 Ohio St., 627, 22 N. E. (2d), 130. And while the statement to come within the rules of res-gestae need not be strictly contemporaneous with the incident to which it relates, it should not be a narration of a past event, nor should it be an answer to a question propounded after the intervention of circumstances which would make the reply one lacking the attributes of spontaneity.

While we hold this evidence improper, we do not find that its submission to the jury constitutes error of a prejudicial nature.

2. Complaint is further made of that part of the judgment entry which declared that the dog is a common nuisance, and which ordered the defendants “to remove said dog from the locality and vicinity of the residence of the respective parties * * * within twenty-four hours from the filing of this order and * * * that unless said chow dog is so removed from said vicinity within said period that defendants kill or cause said dog to be killed and that in lieu of disposal of said dog as provided by the foregoing alternative orders the sheriff of Summit county be and he hereby is or•dered to kill said dog pursuant to Section 5839 of the ■General Code of Ohio.”

' It is claimed by counsel that there is no evidence in the record to substantiate the judgment declaring the animal a common nuisance.

It is to be noted that Sections 5838 and 5839, General Code, are a part of'the “police regulations” of this state. Under these statutes a person who ownq or harbors a dog does so at his own risk. Section 5888, General Code, “imposes an absolute liability [for damages] upon the owner of a dog, and .scienter, fault, negligence or contributory negligence are not involved,” in a proceeding for damages against the ■owner or harborer of such dog if it bites or injures a person. Dragonette v. Brandes, 135 Ohio St., 223, 20 N. E. (2d), 367.

Section 5839, General Code, is in the following terms:

“The court or justice, before which the recovery is had for such injury [under Section 5838], shall declare such dog to be a common nuisance and order the defendant to kill it or cause it to be killed within twenty-four hours thereafter, or order a constable, marshal or sheriff to kill it. ’ ’

This statute is clear and unambiguous. It makes a biting dog, whose activities have caused a judgment to be rendered against its owner or harborer under Section 5838, General Code, a common nuisance as a matter of law, and no other evidence is necessary. Furthermore, this mandatory section requires the •execution of the dog. And the court has no alternative under its provisions.

In this case the judgment of the Court of Common Pleas will be modified to the extent of complying with the provisions of Section 5839, General Code, and as so modified the judgment will be affirmed.

Judgment modified and affirmed as modified.

Stevens and Hitnsickek, JJ., concur.


author: Ross, J.

text:
    Smith, Appellee, v. Brockamp, Appellant, et al., Appellee.
    (No. 6845
    Decided November 8, 1947.)

      Mr. Joseph 1. Williams, for appellee Melvin Everett Smith.

      Mr. J. Aaron Meyer and Mr. B. Wm. Heidkamp, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton county awarding the plaintiff compensation from the state insurance fund.

The plaintiff was for some time a casual patron of the tavern and cafe operated by defendant,. Engelbert Brockamp, appellant herein, hereinafter called defendant, who employed the wife of plaintiff to attend the bar and clean the premises. The mother of this defendant operated a kitchen in connection with the cafe and was the owner of the teal estate upon which the cafe was located. She was made a codefendant with Engelbert Brockamp, but was dismissed during the submission of plaintiff’s evidence, and the plaintiff has taken no appeal from such dismissal.

The plaintiff at various times voluntarily and without compensation from the defendant aided his (plaintiff’s) wife in her several tasks about the cafe.

The defendant decided upon an addition to his tavern and cafe and talked to the plaintiff about design and cost. The plaintiff drew up a sketch or plan of what he considered appropriate.

The plaintiff for some six years prior to this time had been a carpenter’s helper. *■

Lateiy the defendant consulted an acquaintance, Melville Zaeh, whom he had known for 30 years, and who was engaged in the business of “excavating, grading, sodding, and concrete work.” -

The result of these conferences was that the defendant employed Zaeh and the plaintiff to proceed with the work. Other employees from time to time assisted in the work of building the addition to the cafe.

There can be no question that the defendant employed the plaintiff directly and that more than three persons were regularly employed by defendant in the work until its completion.

The plaintiff was injured during the course of such employment and as a direct result thereof.

The plaintiff at first asserted a claim against Zaeh as his employer. This claim was allowed by the Industrial Commission and Zaeh was sued in order to recover the award from the Industrial Commission. That action was brought by the state on the relation of the Attorney General and resulted in a verdict in favor of Zaeh. Thereupon, the instant claim was filed with and rejected by the Industrial Commission, from which rejection an appeal was duly taken to the Common Pleas Court of Hamilton county, resulting in a verdict in favor of the plaintiff, upon which judgment was accordingly rendered. The instant appeal on questions of law is from that judgment.

Only one assignment of error requires comment here. That is the one predicated on the contention of the defendant that the plaintiff was a “person whose employment is but casual and not in the usual course of trade, business, profession or occupation of” the defendant.

The plaintiff was employed to assist in the erection of the addition to the defendant’s tavern and cafe, the operation of which being the defendant’s business. The plaintiff had not been employed by defendant before in any capacity and there' was no indication that either the plaintiff;, Zaeh or any of their coworkers would ever be employed again by the defendant after the completion of the addition.

The addition to the cafe was to be used as a “beer hall” and would result in the expansion of the premises used by the defendant as a “tavern and cafe.” Previously, the ground on which the addition was erected had been used as a “garden” in which the patrons of defendant sat and partook of refreshments. It was at first intended merely to enclose this space, but, later, defendant, upon consulting with the plaintiff and Zaeh, decided upon a permanent structure in which cement blocks were' used. The result of the erection of this addition was to enclose the space in which the business of defendant was conducted and to make the premises more attractive to patrons.

The defendant stated:

“* * * j got figuring out on enclosing the garden, just make a shelter over it — like other1 years, if I had a garden full of people and rain came up why I would be shot for the evening.

“Q. And where was that garden! A. In the rear of 5908.

' “Q. In the rear of your tavern? A. That’s, right.”

And again the defendant stated:

‘‘Q. And you had used that space in the rear as a beer garden before putting this building up? A. That’s right.

“Q. And you considered at one time putting a roof on it for a beer garden? A. That’s right.

“Q. And then you enclosed the building, and why did you do that? A. Because the contractor, he told me, he says, ‘If you make a substantial building it could be used all the year around.’

“Q. Then you carried out his’suggestion? A. Carried out his suggestion, yes.”

In State, ex rel. Bettman, Atty. Genl., v. Christen, 128 Ohio St., 56, 190 N. E., 233, it is stated in the’ syllabus:

“1. Sections 1465-60 and 1465-61, General Code, are in pari materia and must be construed together.

“2. Workmen are regular employees, within the purview of Sections 1465-60 and 1465-61, General Code, so long as they are hired to do work in the usual course of the trade, business, profession or occupation of the employer.

“3. In order that a person’s employment shall be deemed to be in the usual course of the trade, business, profession or occupation of the employer, it must be employment for work of the kind required in the business of the employer and it must be in conformity to the established scheme or system of the business. Such scheme or system comprehends the nature of the enterprise, its organization, its personnel requirements and its methods of operation. The time for which such employment has continued is not controlling.”

Section' 1465-61, General Code, provides, in part:

“The term ‘employee,’ ‘workman’ and ‘operative’ as used in this act shall be construed to mean: ^ * *

“2. Every person in the service of any person, firm or private corporation, including any public service corporation, employing three or more workmen or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens and minors, but not including any person whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer.”

Section 1465-60, General Code, provides in part:

“The following shall constitute employers subject to the provisions of this act: * # *

“Every person, firm and private- corporation, including any public service corporation, that has in service three or more workmen or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, oral or written. * * *”

The defendant did not consider himself included within the purview of that act and consequently did not comply with the requirements applicable to employers described therein.

In the Christen case, the employer was engaged-in the general business of painting and the employee was employed as a painter, so that the factual situations in the Christen case and the instant case are not identical.

However, as. pointed out in ■ the Christen case, at page 58, Section 1465-61, General Code, was amended in 1917 by substituting the conjunction, “and,” for the disjunctive, “or,” in the last clause, so that the section reads as quoted.

Certainly, the Legislature must be considered to have made such change with a definite design to change the effect of the language used, and it seems entirely clear that in order to take an employee out of the ap-plication of the act, it must not only appear that the employment was casual, but also, that such employment was not “in the usual course of trade, business, profession or occupation of his employer.”

That is the conclusion expressed in the Christen case and sustained by the authorities therein noted.

Some of those cases as well as others illustrating the application of the exclusion will be noted hereinafter, and a rather definite line of cleavage developed in differentiating between- facts justifying a conclusion, including or excluding the employee from coverage of the act. By way of illustration, if a lawyer, whose office is not maintained in his residence, should employ three or more workmen to build an addition thereto, the employees so engaged would not be in-, eluded in the coverage of the act, but, if on the other hand, a physician, who uses his home for the purpose of practicing his profession as well as a residence, employed three or more workmen to build an addition thereto, which would increase the facilities of his practice, then such employees would be' included in coverage.

In the following cases, the courts have attempted to distinguish facts entailing liability upon the employer from those excluding the employee from coverage because of employment casual in nature and unconnected with the usual occupation of the employer.

In Caca v. Woodruff, 70 Ind. App., 93, 123 N. E., 120, the employee, a carpenter, was employed at various times to make repairs and build additions to the mill of the employer engaged in the business of operating a mill in which wheat, corn and feed were ground. The “work consisted in taking the roof off a shed or driveway, which was a part of the mill building, and constructing a room above one end of the driveway, in the lowering of a floor, in building a stairway and changing and hanging a door, and in constructing bins7 for holding grain, flour, meal and feed stuffs.” The work occupied between two and three weeks. The employee was injured during the prosecution of the work. The court held:

“Though Section 9 of the Workmen’s Compensation Act expressly excepts casual laborers-from the compensatory provisions of the law, yet, under Section 76, clause b, of the act, an injured workman may recover compensation, even though his employment is casual, if the employment is in the usual course of the employer’s business.

“Since additions and repairs to buildings and machinery are necessary to the proper conduct of the milling business, the constructing and making of such additions and repairs is employment ‘in the usual course of the employer’s business’ within the meaning of Section 76 of the Workmen’s Compensation Act, defining ‘employee.’

“A carpenter engaged at different times in building an addition, and in making repairs, to a mill under the supervision of the owner, for which he was paid weekly at a fixed price per hour, the owner furnishing materials, was an ‘employee’ within the meaning of Section 76 of the Workmen’s Compensation Act, and not an independent contractor, such work being in the usual course of the milling business.”

In Miller & Lux, Inc., v. Industrial Acc. Comm., 32 Cal. App., 250, 162 P., 651, the employer was a corporation engaged “in many and divers occupations” in connection with the operation of the business of “wholesale butcher.” It had numerous properties, upon which buildings from time to time were constructed, improved, and repaired. Carpenters were constantly employed. The applicant had been employed for some two months before he was injured while acting as a foreman of carpenters engaged in such work. .It was held that the employment was not casual.

In Dyer v. James Black Masonry & Contracting Co., 192 Mich., 400, 158 N. W., 959, the employee was injured while engaged in taking care of glass as it was unloaded at the place of business of the employer, which was being glazed. The work occupied a considerable time. The employment was held not to be casual.

In Scott v. Payne Bros., Inc., 85 N. J. Law, 446, 89 A., 927, the employee was injured while engaged as a structural steel worker upon a building in course qf construction. The employer was the constructing contractor. The court held that the work was not casual.

In Mullen v. Walker, 105 N. J. Law, 199, 143 A., 363, it is stated in the syllabus:

“Plaintiff had been employed to assist in unloading a carload of flour. After he had finished the work he was paid off and told that the employer would have another carload in a few days. Upon being •asked if he would care to work in unloading such other ear when it came in, he replied that he would if he had then no other regular employment. When the other car arrived word was sent to plaintiff and having no other regular employment, he set to work and was injured while moving the flour. Held, that such employment was not a ‘casual employment’ within the purview of the Workmen’s Compensation Act. ”

In Holmen Creamery Assn. v. Industrial Commission, 167 Wis., 470, 167 N. W., 808, it is stated in the syllabus:

“1. The term ‘employment,’ as used in sub. (2), sec. 2394-7, Stats. 1915, refers to the nature or kind of ■service rendered rather than to the nature of the contract of hiring.

“2. An employment which ‘is but casual,’ within the meaning of said statute, is one which is only occasional, or comes at uncertain times, or at irregular intervals, and whose happening cannot be reasonably anticipated as certain or likely to occur or become necessary or desirable.

“3. Bepairs upon a building used for business purposes are an essential part of the business and, though they come at irregular intervals and the exact time when they will be needed cannot be foretold, are to be anticipated, provided for, and made when necessary or convenient; hence, although a workman who was injured while making repairs on a creamery building had been, on that as on several previous occasions, •specially hired for the repair work only, his employment was not merely ‘casual,’ within the meaning of sub. (2), sec. 2394-7, Stats. 1915.”

In Gotchy v. North Dakota Workmen’s Compensation Bureau, 49 N. D., 915, 194 N. W., 663, it was held in the fifth paragraph of the syllabus:

“Where the deceased, a carpenter, was intermittently employed by an elevator company in doing its-carpenter work and general repair work and prior to-the time of his injury had been engaged for some-forty days in constructing a unit or leg for an elevator and doing some other general repair work, and where such carpenter was employed by the hour and his methods of prosecuting the work were in some respects subject to the control of the elevator company, it is held, for reasons stated in the opinion, that the-decedent, at the time of his injury, was an employee of the elevator company engaged in the course of its business.” '

In Benoy v. Torkelson, 161 Minn., 223, 201 N. W., 312, the employee was engaged as a carpenter, to erect a potato warehouse and to oversee it when built. The employer was engaged in the business of buying and shipping potatoes as a commercial enterprise. The employment was held not casual. It was stated in the-opinion, at page 225, that “it is not necessary that a new business be in operation, it is sufficient if it- appears that the work in which the injured employee-was engaged was in erecting the necessary structures-for the business, trade or occupation the employer-had concluded to carry on.”

In Blood v. Industrial Accident Commission, 30 Cal. App., 274, 157 P., 1140, it was held that “one employed to apply two coats of paint to the house of his employer, the employer to furnish the painting materials and the employee to receive a certain amount per diem, the employment not being for any definite period of time, but the work being such as would reasonably be-•done within two weeks, is not entitled to recover for •accidental injuries sustained the first day of his employment.”

In Armstrong v. Industrial Accident Commission, 36 Cal. App., 1, 171 P., 321, it was held:

“A carpenter employed for about three months on day wages in the erection of a dwelling-house for his ■employer is entitled, under the Workmen’s Compensation Act, to compensation for injuries received, .since his employment is not both casual and out of the usual course of the trade, business, profession, or occupation of his employer.”

In the opinion, at - page 4, the court distinguished the Blood case, supra, upon the basis that that case dealt with repairs to an existing building. The same court, in Miller & Lux, Inc., v. Industrial Acc. Comm., supra (see page 3, opinion), sustained coverage where claimant was an employee engaged to construct a 14-room cottage. The court seemed to draw a distinction between repairs and initial construction.

In Nebraska National Guard v. Morgan, 112 Neb., 432, 199 N. W., 557, the claimant was injured ' while preparing a certain area for an encampment of the National Guard. In the opinion, at page 436, the court .said:

“It would seem to require no argument to support the proposition that the National Guard has no trade, business, profession or occupation within the meaning of those terms as used in the statute, as they have reference to industrial concerns, and the theory of employees’ compensation acts is that the losses occasioned employees through accident shall be charged to the industry the prosecution of which is the occasion of the service. But it is not illogical to say that the holding of an encampment required by law is a part of the business or occupation of the National Guard; and the preparation of the ground in the interest of the comfort and health of the militia while-performing their duties is a proper and necessary work connected therewith. ’ ’

Fiorot v. Braide, 279 Pa., 247, 123 A., 779, holds in the syllabus:

“1. Compensation will be allowed for the death of an employee of a butcher killed while felling trees,, where it appears that the employer needed the wood to be secured from the trees for use' in his butcher-shop for heating and other purposes in connection with his business.

‘ 2. Such employment is not casual within the meaning of the Workmen’s Compensation Act, but is within the regular course of business of the employer.”

In Am. Steel Foundries v. Indus. Board, 284 Ill., 99, 119 N. E., 902, the defendant was engaged exclusively in making railway steel castings. It entered into an agreement with an independent contractor to wreck a smokestack on one of its buildings. The decedent of claimant was employed by the independent contractor to assist with others in wrecking the stack. The decedent was a stack wrecker. The independent contractor failed to comply with the compensation act,, thus imposing his liability, if any, upon defendant for the death of decedent who lost his life while wrecking the stack. It was claimed the employment of decedent was casual. The court said there was no evidence the job would last only three or four days, and the mere fact the employment was for one job only, did not make the employment casual. Coverage was-sustained.

No mention has herein been made of the numerous cases in which coverage has been decreed where the ■employment was in the actual occupation of the employer. Of such is the case of Industrial Commission v. Kukes, 53 Ohio App., 309, 4 N. E. (2d), 988, in which the owner of an orchard was held to be an employer within the act, although the claimant was employed to pick apples for a short time during the season.

See, also, Schneeberg v. Industrial Commission, 67 Ohio App., 499, 37 N. E. (2d), 427.

The Christen case, supra, is the same type of case.

The Court of Appeals of the Eighth Appellate Dis-. trict of Ohio' recently affirmed without opinion, as far ■as can be ascertained, a judgment of the Common Pleas Court of Cuyahoga county awarding compensation to a claimant whose decedent was killed while working upon a chapel, and in the direct employment of a building committee appointed by a church congregation to erect such new building.

Now, in the instant case, the defendant was engaged in the business of operating a tavern and cafe, to which his patrons came for refreshment and pleasure. He provided tables and chairs for their convenience. Eor some time, he had employed a plot of ground in the rear of his establishment as a “garden” in which tables and chairs were placed and used by his customers. When the weather was inclement his patrons •either left the premises or were driven indoors. In order to increase the capacity of the premises used as a tavern and cafe, he employed the claimant and others to construct a substantial structure as an addition to his then existing establishment. While this was a unique, isolated, and casual enterprise, and, as far as appears from the record, the employment of the claimant was merely for the duration of this particular undertaking — the construction of the addition was one which could be expected to occur in the usual and natural expansion of the defendant’s business.

Such a business either wanes and fails, or it grows- and expands. The usual course of business, therefore, involves expansion and the construction of additions to the structure originally occupied. The normal increase in business is often taken care of by a change to a larger location. In this case, the mother of defendant owning the premises, this change was-taken care of by an addition to the premises.

One other case requires consideration. That is the-case of Holden v. Beebe Fuel Co., 60 Ohio App., 430, 21 N. E. (2d), 874. The defendant asserts that that caséis an authority justifying reversal of the judgment of the trial court.

In that case, it was held:

“A painter who contracts with a retail coal dealer to paint the buildings leased and occupied by the latter in its business, the-painter agreeing to furnish all-equipment and to do the specific job of painting, the coal company neither reserving nor exercising any specific control over the work, the manner of doing it, the hours per day to be employed, or the handling of the equipment, and when completed the employment is to end, is an independent contractor in the ‘ casualr employment of the coal company within the terms of Section 1465-61, General Code, and is not employed in the ‘usual course of business or occupation’ of the company so as to be classed as an employee and, when injured while performing the contract, is not entitled to the benefits of the Workmen’s Compensation Act.”

In the first place, it is apparent that the conclusion of the court is predicated upon the premise that the-claimant was an independent contractor and did not come within the definition of an employee as found in-the statutes. His son, engaged as his helper and coworker, was not employed by the defendant, but, on the contrary, was employed by the plaintiff to aid him in carrying out his contract with the defendant.

However, Judge Overmyer stated in the opinion:

“Following the Ohio rule of interpretation as laid down in the Christen case, which hás not 'been overruled but consistently followed, we hold that appellee’s •employment was but casual and was surely not in the usual course of the employer’s business, for the employer was a coal dealer and was not even the owner •of the properties to be painted; it furnished none of the material .or equipment to do the work; the appellee was to do this specific job of painting the several buildings, .and when completed the employment would end; it was a single job, for a short period, under a written contract, and of a type of work in no way required or connected with the business of the fuel company but purely incidental, like the repair of a roof, the laying of a sidewalk or any incidental, occasional and irregular work connected with the repair or maintenance of the buildings and properties of the coal dealer. To adopt appellee’s contentions would open up a field clearly not within the contemplation of the-creators of the act.”

That authority might be dismissed with the comment that the dissertation upon casual employment is pure obiter, the court having decided that the employer was an independent contractor. The opinion of Judge Overmyer requires more than such summary treatment. The court relied upon the case of Lamont v. Intermountain Realty Co., 48 Wyo., 56, 41 P. (2d), 497, and the authorities therein noted, and made no reference (with the exception of the Christen case) to the authorities hereinbefore noted in this opinion, or to many others in which the Lamont case is later dis-' ■cussed.

The case of Tokash v. General Baking Co., 349 Mo., 767, 163 S. W. (2d), 554, was one where the employer was engaged in the baking business and employed the-claimant as a painter.

The court held:

‘1 The evidence authorized the finding of the commission that the baking company had a maintenance department and regularly painted its building in the usual course of business. The employment was not casual. ’ ’

In the opinion, on page 772, the court cited the-Lamont case, among others, with the comment that "those cases aré distinguishable on the facts.”

In Garrison v. Gortler, 234 Ia., 541, 13 N. W. (2d), 358, it was held:

"The proprietor of a grocery store employed a workman to repair a leaky roof of the building. The workman fell from a ladder and was injured. 1.1 eld that at the time of the injury the workman was a person whose employment was for the purpose of the employer’s trade or business and under section 1421, C., ’39, was compensable.”

The court, in considering the case of Pope v. Safeway Stores, Inc., 54 Wyo., 266, 91 P. (2d), 58, noted-the Lamont case, stating: "The appellant in that

case relied largely upon Lamont v. Intermountain Realty Co., 48 Wyo., 56, 41 P. (2d), 497. The court distinguished it from the Pope case, and noted that the-painter who was injured while painting the inside of a hotel ‘was * * * almost to be regarded as an independent contractor.’ ”

In the opinion in the Garrison case, supra, the court commented upon almost every case dealing with this question. It. amounts to a digest and review of all pertinent cases.

The case of Meyer & Meyer v. Davis, 162 Okla., 16, 18 P. (2d), 869, noted at page 435 of the opinion in Holden v. Beebe Fuel Co., supra, was a case construing an Oklahoma statute involving hazardous employment.

It is the conclusion of this court that the great weight of authority, as developed from those cases and the many cases considered therein, is that the employee in the instant case cannot be classified as a “person whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer.”

The judgment is affirmed.

Judgment affirmed..

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


text:
    The State, ex rel. Campbell, v. Durbin et al., Board of Elections of Allen County.
    (No. 954
    Decided September 22, 1947.)

      Mr. Anthony- J. Bowers and Mr. Ernest 8. Navarre, for relator.

      Mr. Hugh S. Jenhms, attorney general, Mr. E. G. Schuessler and Mr. Paul T. Landis, prosecuting attorney, for respondents.
   By the Court.

This is" an action in mandamus brought by the state of Ohio on relation of Bruce M. Campbell against Francis W. Durbin, Dewey Fetter, Aldine Kohli and M. M. Bogart, members of the Board of Elections of Allen County, as respondents, for an order commanding the respondents to permit the relator and all other persons possessing the qualifications of electors of the city of Lima, to register with the respondents so that they may be entitled to vote at the election to be held bn October 7, 1947, to nominate candidates for the office of representative in Congress from the fourth congressional district of Ohio, to be' voted for at the special election to be held on November 4, 1947, pursuant to writ of election issued by the governor of the state of Ohio on the 9th day of September 1947, to fill the vacancy in the office of congressman of the district, and at the general election to be held on the last mentioned date.

In his petition, the relator avers his qualifications as- ' an elector of the city of Lima and the refusal of the respondents, on September 17, 1947,' to permit hiip 'to register as a qualified voter of the city.

In their answer, the respondents admit the qualifications of the relator as an elector of the city, and their •refusal to permit him to register as such elector, and allege that such refusal was by reason of, and pursuant to, a written ruling of the Secretary of State of Ohio, delivered to the respondents, bearing date of September' 15, 1947, made pursuant to an opinion of the Attorney General of Ohio, No. 2242, dated September 12,1947, to the effect that the last day for registration for persons living in registration precincts in the congressional district who desired to register in order to vote at either the aforesaid election on October J, 1947, or at the special election to fill the vacancy in the office of representative in Congress from the district, or in the general election to be held on November 4, 1947, was September 8,1947. '

On the trial of this cause, the writ of election issued by the Governor, the ruling of the Secretary of State, and the opinion of the Attorney General, above referred to, were introduecd in evidence, and the attorneys for the parties conceded, and the court took judicial notice of the fact that the law required registration of electors in the cities of Lima and Piqua in the «congressional district _in order to entitle them to vote 'at the elections to be held in the district.

Under the admissions in the pleadings, and the in.■struments introduced in evidence, and the fact conceded by counsel and taken judicial notice of by thp •court, the relator and all other persons having the •qualifications of electors of the city of Lima are entitled to register in order to enable them to vote at «each of the elections, unless the ruling of the Secretary •of State, based on the opinion of the Attorney General, constitutes a correct statement of the law applicable to registration in such cities.

The pertinent provisions of the General Code governing registration in the city of Lima, as well as the city of Piqua, are contained in Section 4785-39, reading as follows:

“Persons qualified to register or to change their registration may register or change their registration at the office of the board at any time such office is open except twenty-eight days preceding or ten days following a primary or general election, provided that any registered elector who removes from one precinct to another in the same political subdivision after the close of such registration period shall have fhe right to vote at the next succeeding election in the ¡precinct from which he moved, wherein he was legally registered.”

The above section clearly states, that persons qualifled to do so, “may register * * * at aiiy time * * * except twenty-eight days preceding or ten days following a primary or general election. ’ ’

It is prescribed by the writ of election issued by the Governor, that the election for the nomination of candidates for the special election to fill the vacancy in the office of representative in Congress is to be held on October 7,1947, and the special election to fill such vacancy is to be held on November 4, 1947, being the same day as the general election, so that if the election for the nomination of candidates for the special election is a “primary” election within the purview of the laws relating to elections, the relator and other persons having the qualifications of electors would, by the application of the provisions of the above section, be precluded- from registering subsequent to September 8, 1947, as the 28-day period preceding Octobér 7, 1947, was September 9, 1947, and the ten-day period following October '7, 1947, will be October 17, 1947, which will fall within the 28-day period next preceding November 4,1947, the date of the general election.

As the writ of election was not issued by the Governor until September 9, 1947, a holding that the election for the nomination of candidates for the special congressional election was a “primary”' within the purview of Section 4785-39, General Code, would have' the effect of precluding qualified electors who may have lawfully registered on September 9, 1947, prior to the issuánce of the writ of election, from voting at the election for the nomination of candidates for such special election, such special election, and the general election. It would also have the effect of precluding any qualified persons who had not registered prior to September 9,1947, from voting at any of such elections.

In his opinion, the Attorney General relies upon certain of the definitive provisions of the act of which Section 4785-39, General Code, is a part, as determinative that the election for the nomination of candidates for the special congressional election is a “primary ’ ’ within the purview of that section.

Those definitive provisions are contained in the section of the act now designated as Section 4785-3, General Code, and are as follows:

“The terms used in this act and in the statutes relating to elections shall have the meaning herein defined, unless other meaning is clearly apparent in the language or'context.”

‘ ‘ a. The term ‘ general election ’ shall mean any election held on the first Tuesday after the first Monday in November.”

“d. The term ‘special election’ shall mean any election other than a regular state, a regular municipal or primary election.”

“e. The term ‘primary’ or ‘primary election’ shall mean any election held for the purpose of electing party committees, choosing delegates to a party convention, or nominating candidates to be voted for at an election.”

The Attorney General, in his opinion, concludes that under the statutory definition of a “special election” a primary election cannot be regarded as a special election, that, as the statute defines a “primary” or “primary election” as “any election held for the purpose of * * * nominating candidates to be voted for at an election,” the election called for October 7, 1947, being called for the purpose of nominating candidates to be voted for at the special election to be held on November 4, 1947, is a “primary” within the purview of Section 4785-39, General Code, and that the limitation on time of registration prescribed by the section applies to the election.

It will be noted, however, that such definitions, by the-express terms of Section 4785-3, General Code, are not applicable where “other meaning is clearly apparent in the language or context. ’ ’

The election to fill the vacancy in the office of representative in Congress was called by the Governor pursuant to the following provision of Section 2, Article I of the Ünited States Constitution, to wit:

“When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. ’ ’

It was also called pursuant to the following provisions of the Constitution of Ohio, to wit:

“The election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law.” Section 27, Article II.

“All vacancies in other elective offices shall be filled for the unexpirbd term in such manner as may be prescribed by law.” Section 2, Article XVII.

The statutes applicable to such elections, enacted pursuant to the above quoted constitutional provisions, read as follows:

“When a vacancy in the office of representative to congress * * * occurs, the governor, upon satisfactory information thereof, shall issue a writ of election, directing that a special election be held to fill such vacancy in the territory entitled to fill it on a day specified in the writ. Such writ shall be directed to the sheriff or sheriffs within such territory who shall give notice of the time and places of holding such election as in other cases. Such election shall be held and conducted and returns thereof made as in case of a regular election.” Section 4829, General Code.

“When a special election is found necessary to fill a vacancy, the date of the primary shall be fixed at the same time-and in the same manner, as that of the election, by the authority calling such special election; which primary shall be held at least fifteen days prior to the time fixed for such special election. Declaration of candidacy and certificates for such primary shall be filed and fees shall be paid at least ten days before the date for holding such special election.” Section 4785-97, General Code.

It will be noted that the above quoted portion of Section 2, Article I of the United States Constitution, which is the primary constitutional authority for holding an election to fill a vacancy in the office of representative to Congress, does not expressly authorize any election to nominate candidates to be voted for at an election to fill a vacancy. It will be noted also that Section 4829, General Code, adopted pursuant to the constitutional provisions, does not authorize an election to nominate candidates to be voted for at an election to fill such vacancy, but merely authorizes the issuance of a writ of election to fill the vacancy in the office of representative to Congress in conformity with the express authority conferred on the Governor by the above quoted provisions of Section 2, Article T of the United States Constitution.

It is, therefore, apparent that whatever authority the Legislature had to enact Section 4785-97, General Code, providing for the holding of an election to nominate candidates to be voted for at the special election to fill the vacancy in the office of representative to Congress is implied in the provisions of Section 2, Article I of the United States Constitution; that such election is necessarily incidental to the special election to fill such vacancy; and that such election, being incidental to such special election, is in itself a special election. It is also special in that it differs from other elections, in that the primary authority for calling it is derived from the United States Constitution and that the writ therefor is, under the law, directed to-the sheriffs instead of the board of elections.

It is recognized by the Legislature as a special election, in the last sentence of Section 4785-97, General-Code, providing that “Declaration of candidacy and certificates for such primary shall be filed and fees-shall be paid at least ten days before the date for holding such special election,” the filing of such declaration and certificates under the laws of Ohio being conditions precedent to the nomination of candidates at-any election.

It, therefore, is clearly apparent from the language- and context of the statutes relating to elections, that the election for the nomination of candidates to be-voted for at the special congressional election is not a “primary” or “primary election” within the purview of Section 4785-39, General Code, but is a “special primary .election” as designated in the writ of election issued by the Governor. Such election not being a “primary” or “primary election,” the provisions of Section 4785-39, General Code, limiting the time preceding a “primary” or “general election”' in which persons qualified to register or to change their registration may register or change their registration,, have no application.

The time limitations of Section 4785-39, General-Code, however, do apply to the special election to fill the vacancy in the.office of representative in congress,, to be held on November 4, 1947, the date of the general election-, as under the provisions of Section 4785-3,, General Code, the term “general election” comprebends any election held on the first Tuesday after the first Monday in November.

Section 1 of Article V of the Constitution of Ohio provides:

“Every citizen of the United States, of the age of tWenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections. ’ ’

The rights conferred by those constitutional provisions are recognized as an essential part of our liberties. The General Assembly, under the grant of legislative power secured to it by the Constitution, has power by statute to provide for the registration of voters, and to direct that all electors must register before being permitted to vote. Such an act, however, to be valid, must be reasonable and impartial and calculated to facilitate and secure the constitutional right of suffrage, and not to subvert or injuriously, unreasonably, or unnecessarily restrain, impair or impede the right. Daggett v. Hudson, 43 Ohio St., 548, 3 N. E., 538, 54 Am. St. Rep., 832.

The rule applicable to the construction of statutes regulating those rights is that such statutes must be so construed as to insure, rather than defeat, exercise thereof when and where possible. Manning v. Young et al., Bd. of Election Commrs. (1933), 210 Wis., 588, 247 N. W., 61. The decision in this case is in conformity with this rule.

It is, therefore, ordered, adjudged and decreed that a writ of mandamus be issued commanding the respondents, Francis W. Durbin, Dewey Fetter, Aldine Kohli and M. M. Bogart, members of the Board of Elections of Allen County, to permit the relator, Bruce M. Campbell, and all other persons who have the qualifications of electors of the city of Lima, to register in order that such persons may qualify to vote at the special primary election to be held on October 7, 1947, and the special election to fill the vacancy in the office of rejjresentative to Congress, to be held on November 4, 1947, and the general election to be held on November 4, 1947, such registration to be permitted up to and including October 6, 1947.

Writ allowed.

Jackson, P. J., Guernsey and Middleton, JJ., concur.