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structed as to cast water from its con- is found in Stephens V. Deickman ductor pipe upon the sidewalk in such (Striger v. Deickman) (1914) 158 Ky. a way as to freeze and render the side- 337, 51 L.R.A.(N.S.) 309, 164 S. W. walk unsafe for pedestrians.

931, where the court, in speaking of

the duty of a property owner with re. e. Notice of, and time for remedying,

spect to conducting water from the condition,

roof of his house to the sidewalk, says In Skelton v. Thompson (1883) 3

that, in case an obstruction or nuiOnt. Rep. 11, the view seems to have

sance arises therefrom suddenly or been taken that an abutting owner

unexpectedly, it is his duty to remove could not be held liable for injuries

the obstruction or nuisance as soon from a fall on the adjoining sidewalk,

as he has knowledge of its existence, even though the cause of such fall was

or could have such knowledge by the an accumulation of ice formed from

exercise of ordinary care. water discharged upon the walk by a

And a similar intimation is found in pipe connecting with the eaves troughs

Davis v. Rich (1901) 180 Mass. 235, 62 of the building, unless he knew, or

N. E. 375, where the water was alleged ought to have known, of the existence

to have reached the walk because of a of such accumulation of ice, and failed

hole or defect in the defendant's spout to remove it within a reasonable time.

or conductor pipe. It is stated in the opinion that it is un

And in some other cases such as necessary to discuss the question

Dow v. Interborough Rapid Transit Co. whether it was or was not lawful to

(1918) 185 App. Div. 10, 172 N. Y. have the spout in use as it was, since

Supp. 623, and Organ v. Toronto no injury was caused by the spout, or

(1893) 24 Ont. Rep. 318, it appeared by the mere fact of its discharging

that the ice had been on the walk for water on the sidewalk, as it was not some time before the accident octhe flow of water, but the action of the curred. weather thereon, that made the ob- But in Isham v. Broderick (1903) 89 struction. In that case it appeared Minn. 397, 95 N. W, 224, 14 Am. Neg. that the ice upon which the plaintiff Rep. 112, it is stated that if a conducfell had formed within two or three tor pipe which discharges water on or hours before the accident occurred, near the sidewalk, by its natural operand that the abutting owner had no ation, causes the formation of ice knowledge of its formation, and ought thereon and creates a nuisance, the not reasonably to have known of it. owner must be presumed to know it. And an inference to the same effect

M. A. L.


MAUD E. DELL, Exrx., etc., of Sarah Plumsteel, Deceased, et al.

Ohio Supreme Court March 21, 1922.

(104 Ohio St. 389, 135 N. E. 669.) Evidence, $ 155 — presumption of continuance of marriage.

1. Where it is stipulated that both marriages have been lawfully solemnized, and the record is silent as to whether there has been a divorce of the parties to the first marriage, there is a presumption that the status of the parties to the first marriage continues, and the burden is upon the parties claiming the validity of the second marriage to overcome such presumption.

[See note on this question beginning on page 464.] Headnotes by the COURT.

(104 Ohio St. 389, 135 N. E. 669.) Workmen's compensation, $ 8718 - vorced, it is the duty of the commisrevocation of award.

sion to revoke the award already made 2. By authority of the continuing and to make an award to the widow jurisdiction conferred by $ 1465-86,

of the lawful marriage. General Code, the Industrial Commis- Workmen's compensation, $ 861 sion may revoke an award theretofore death of beneficiary - effect. made, upon ascertainment of any facts 4. The right of a widow to particigoing to the basis of the claimant's pate in the state insurance fund is not right, whenever in its opinion such lost by the death of such widow before revocation is justified.

an award has been rendered thereon, Workmen's compensation, § 8718 —

but the legal representative of such award to spurious widow.

widow, in the absence of other depend3. Where, in the case of a killed

ents, is entitled to an award covering employee, an award has been made to

the period from the time of the death

of the employee until the death of such the person claiming to be his widow,

widow. and it is afterward ascertained that

[See 28 R. C. L. 782; 4 R. C. L. Supp. the decedent had a former wife liv- 1851. See also notes in 15 A.L.R. 821; ing, from whom he had not been di- 24 A.L.R. 441; 29 A.L.R. 1426.]

ERROR to the Court of Appeals for Franklin County to review a judgment reversing a judgment of the Court of Common Pleas as to the estate of Sarah Plumsteel, deceased, in consolidated proceedings brought under the Workmen's Compensation Act to recover compensation for the death of the deceased husband. Afirmed.

Statement by Marshall, Ch. J.: in Columbus in 1914. It is not This proceeding involves a review shown that there was ever any of orders of the Industrial Commis- trouble between Plumsteel and his sion of Ohio.

family in New York state, and there On September 28, 1917, Hiram J. is some testimony that he had Plumsteel was killed while in the trouble with his creditors which course of his employment at the necessitated his remaining out of plant of F. 0. Schoedinger, Colum- New York state for a while. There bus, Ohio. Plumsteel was married is evidence tending to show that he in Canada in 1875, and lived with made regular contributions to his his wife, Sarah, at Niagara Falls, family of $50 a month until about in New York, for many years, that the year 1912 or 1913. The wife, state being the last domicil of the Sarah, was a helpless invalid for marriage. Seven children

many years prior to the death of her born of that marriage, some of husband, Hiram, and the children whom are deceased, and others of wrote frequently to their father, whom are of age and were married urging support for the mother, and earning their own living prior without results, one of such letters to the death of their father. Plum being as late as July, 1917. The recsteel was a traveling salesman, and ord fairly shows that Hiram renwas away from home a great deal, dered no aid to his wife, Sarah, latbeing absent for periods varying er than the year 1913. from a few weeks to several months. In the year 1915 Plumsteel was About the year 1904 he left on one married, at Columbus, Ohio, to one of his trips, and thereafter never Maggie Berg; the marriage being returned to or even visited his fam- solemnized under due form of law. ily. Between 1904 and the time of The record shows that Plumsteel his death he made his headquarters represented to Maggie Berg that his in various cities in Ohio, and appar- first wife was dead. He frequently ently acquired a residence in Co- made the same statement to the lumbus, Ohio, many years before his brother of Maggie Berg, and also to death, because the record shows Mr. Mecartney, his attorney. It that he was an owner of real estate does not appear that he ever made the statement to anyone that he was death, within the meaning of the ever divorced from his first wife. Workmen's Compensation Law. On the other hand, there is no evi- Error was prosecuted by both esdence in the record even tending to tates to the court of appeals, and show that he was not divorced from the court of appeals affirmed the his first wife.


judgment as to the estate of Maggie Immediately after his death, Berg, but reversed as to the estate Maggie Berg filed an application of Sarah Plumsteel, and remanded with the Industrial Commission for the cause to the court of common compensation, and was, about Octo- pleas for further proceedings on the ber, 1917, awarded the full amount claim of Maud E. Dell, as executrix due to a person wholly dependent of Sarah Plumsteel. Thereupon the Soon thereafter the first wife, Sa. Industrial Commission and David rah, learned of the death and also E. Evans, as administrator of the made application to the Industrial estate of Maggie Lederer, prosecutCommission, whereupon, on Novem- ed error to this court. ber 21, 1918, the order made in fa

Messrs. John G. Price, Attorney vor of Maggie Berg was revoked

General, and R. R. Zurmehly, for and further payments thereon sus- plaintiff in error: pended, on the ground that she was Sarah E. Plumsteel was not residing not the widow of the deceased or a with Hiram J. Plumsteel at the time of statutory dependent within the his death, and no evidence was offered meaning of the law. The commis

to show that she was dependent upon sion also refused the application of

him at the time of his death, as pro

vided by the Workmen's Compensation Sarah, on the ground that she was

Law. not a dependent, because she was

Nelson's Case, 217 Mass. 467, 105 N. not living with the deceased at the

E. 357, 5 N. C. C. A. 694; Gallagher's time of his death and had not been

Case, 219 Mass. 140, 106 N. E, 558; supported by him for several years Newman's Case, 222 Mass. 563, L.R.A. prior thereto.

1916C, 1145, 111 N. E. 559; NorthBoth women filed an appeal from

western Iron Co. v. Industrial Commisthe order of the commission in the

sion, 154 Wis. 97, L.R.A.1916A, 366, 142

N. W. 271, Ann. Cas. 1915B, 877; Robcourt of common pleas of Franklin

erts v. Whaley, 192 Mich. 133, L.R.A. county, and the causes were later

1918A, 189, 158 N. W. 209; New Monckconsolidated and have ever since ton Collieries 'v. Keeling [1911] A. C. been carried as one cause.

Before 648, 80 L. J. K. B. N. S. 1205, 105 L. T. the case came on for trial Maggie N. S. 337, 55 Sol. Jo. 687, 27 Times L. Berg was again married to one Led

R. 551, 4 B. W. C. C. 332, 6 N. C. C.

A. 240—H. L.; Lindsay v. M'Glashan erer, and later died, and David E.

[1908] S. C. 762, 45 Scot. L. R. 559, 1 Evans was appointed administrator

B. W. C. C. 85 Ct. of Sess.; Devlin and the cause revived in the name v. Pelaw Main Collieries, 5 B. W. C. of the administrator. Sarah Plum- C. 349—C. A.; 1 Honnold, Workmen's steel also died before the case came

Comp. pp. 245, 246, $ 76; Boyd, Workon for trial in the court of common

men's Comp. § 234, p. 612; Karpati v. pleas, and the action was revived as

Gambria Steel Co. 70 Pa. Super. Ct. 202.

Maggie "Plumsteel” clearly was not to her in the name of Maud E. Dell, the wife of the deceased, and was not executrix.

entitled to receive compensation on acThe court of common pleas decid- count of his death. ed that Maggie Berg was not a law- Keener v. Grand Lodge, A. 0. U. W. ful wife, and also that she was not 38 Mo. App. 543; Armstrong v. Indusa member of Plumsteel's family,

trial Commission, 161 Wis. 530, 154 and therefore did not come within

N. W. 845; Temescal Rock Co. v. In

dustrial Acci. Commission, 180 Cal. the Workmen's Compensation Law.

637, 13 A.L.R. 673, 182 Pac. 447. The court further found that Sarah

Awards cannot be made to legal repPlumsteel was not dependent upon resentatives of dependents. her husband at the time of his Doyle v. Baltimore & O. R. Co. 81

(104 Ohio St. 389, 135 N. E. 669.) Ohio St. 184, 135 Am. St. Rep. 775, 90 Hutchinson, 6 Ind. App. 409, 33 N. E. N. E. 165.

816; Vanvalley v. Vanvalley, 19 Ohio Messrs. Carlin & Nixon, Franklin St. 588; Starr v. Knights of MaccaRubrecht, and Pugh & Pugh, for de- bees, 6 Ohio C. C. N. S. 473, affirmed in fendant in error Dell:

74 Ohio St. 501, 78 N. E. 1139; 19 Cyc. Sarah E. Plumsteel was a dependent 430. upon Hiram J. Plumsteel at the time The Workmen's Compensation Law of his death.

confers no power or jurisdiction upon Northwestern Iron Co. v. Industrial the commission, after it has once deCommission, 154 Wis. 97, L.R.A.1916A, termined the question of dependency 366, 142 N. W. 271, Ann. Cas. 1915B, and paid to the dependent a portion of 877; Parson v. Murphy, L.R.A.1918F, the award, to review its finding and 487, note; Linnane v. Ætna Brewing make a change in the beneficiary or Co. L.R.A.1917D, 157, note; Muselli v. devest the beneficiary of a vested right Industrial Commission, 8 Ohio App. of property. 407, 28 Ohio C. A. 97; McMahon's State ex rel. Munding v. Industrial Case, 229 Mass. 48, 118 N. E. 189. Commission, 92 Ohio St. 434, L.R.A.

The executrix is entitled to main- 1916D, 944, 111 N. E. 299, Ann. Cas. tain this action.

1917D, 1162, 13 N. C. C. A. 713; State State ex rel. Munding v. Industrial ex rel. Maher v. Baker, 88 Ohio St. 165, Commission, 92 Ohio St. 447, L.R.A. 102 N. E. 732. 1916D, 944, 111 N. E. 299, Ann. Cas.

Marshall, Ch. J., delivered the 1917D, 1162, 13 N. C. C. A. 713; 1. Honnold, Workmen's Comp. $ 79, p.

opinion of the court: 254; Rayner v. Sligh Furniture Co.

For convenience the parties hereL.R.A.1916A, 135, note; Darlington v.

to will be referred to by their Roscoe (1907] 1 K. B. 219, 76 L. J. K. Christian names, Sarah being the B. N. S. 371, 96 L. T. N. S. 179, 23 Times wife of the first marriage, and MagL. R. 167–C. A.; United Collieries v. gie the wife of the second marriage. Simpson (1909] A. C. 383, 78 L. J. P. C.

This error proceeding presents N. S. 129, 101 L. T. N. S. 129, 25 Times

three legal questions for determinaL. R. 678, 53 Sol. Jo. 630, [1909] S. C.

tion: 19, 46 Scot. L. R. 780, 2 B. W. C. C.

(1) Did the Industrial Commis308-H. L.

sion have authority to revoke the Messrs. Thomas M. Bigger and F. M.

award which was made to Maggie in Mecartney, for defendant in error Evans:

October, 1917, and suspend the un

paid instalments of the award At the time of the death of Hiram paid instalments J. Plumsteel, Maggie Plumsteel Leder

theretofore made? er was his legal wife.

(2) What are the respective and 26 Cyc. 821; Evans v. Reynolds, 32 relative rights of Maggie and Sarah Ohio St. 163; Boulden v. McIntire, as between themselves? 119 Ind. 574, 12 Am. St. Rep. 453, 21 (3) Has the executrix of Sarah N. E. 445; Hadley v. Rash, 21 Mont. the right to prosecute her claim, no 170, 69 Am. St. Rep. 649, 53 Pac. 312; award having been made to her by Jones, Ev. $ 14; Bishop, Marr. & Div. $$ the commission, and no judgment 954, 956; Lawson, Presumptive Ev. !! having been rendered in her favor 118 & 509; Goldwater v. Burnside, 22 Wash. 215, 60 Pac. 409; Potter v.

on appeal during her lifetime? Clapp, 203 Ill. 592, 96 Am. St. Rep.

These questions will be discussed 322, 68 N. E. 81; Pittinger v. Pittinger,

in the order above enumerated. 28 Colo. 308, 89 Am. St. Rep. 193, 64 The first question depends primaPac. 195; Musselli v. Industrial Com- rily on statutory provision. A claim mission, 28 Ohio C. A. 97, 8 Ohio App. was regularly made for an award

by Maggie shortly after the death Under a liberal construction of the of Hiram Plumsteel, and the claim Compensation Statute, the wife of the

was allowed in October, 1917, and second marriage is entitled to the name

some instalments paid thereon. of wife for the purpose of relief under the act, she being the only dependent

The claim was allowed on the theory of Hiram and living with him in en

that Maggie was the lawful wife of tire innocence of wrongdoing.

Hiram Plumsteel. On this theory Supreme Lodge, A. I. 0. U. W. v. she was clearly a person wholly de


pendent, and therefore entitled to upon the commission to modify or an award to the full limit of the change any findings or orders as in provisions of § 1465–82, General

1465-82, General its opinion may be justified. In Code. Thereafter the commission making an award the commission determined that she was not the makes both a finding and an order. lawful wife of Hiram Plumsteel, It must find the essential facts to and revoked the order and discon- entitle the claimant to participate tinued the payments. Section 1465- in the fund, and then make the or86, General Code, provides: “The der for payment. The section conpowers and jurisdiction of the board tains no qualifying words. No reaover each case shall be continuing, sons are required to be stated, and it and it may from time to time make is only necessary that the change or such modification or change with re- modification may find justification spect to former findings or orders in the opinion of the members of the with respect thereto, as in its opin- commission. That section is of ion may be justified."

course in pari materia with all the The continuing jurisdiction of the other sections of the Workmen's commission is further recognized in Compensation Law, and the com$ 1465-90, wherein provision is mission may not run counter to othmade for appeal from certain orders er provisions or modify or change of the commission to the court of its orders in such manner as to run common pleas; it being provided counter to other sections; neither that appeal may be made from the may such modifications or changes final action of the commission deny- be arbitrary or groundless. It is ing the right of the claimant to par- well understood that the primary ticipate at all or to continue to par- purpose of a continuing jurisdiction ticipate in the fund on certain is to give a board or tribunal the grounds, including "any other power to modify or change a judgground going to the basis of the ment or order to meet changed conclaimant's right.”

ditions, or to do justice in the light When § 1465–86 was enacted, § of newly discovered evidence, or to 1465-90 was also enacted, but the correct an order which was made as latter section did not originally in- the result of fraud or imposition, or clude the right to appeal from an an order which would not have been order denying the right to "continue made if certain facts later discovto participate” in the fund. Surely ered had then been known to exist. the question whether the claimant It is easy to conceive that certain is in fact a dependent goes “to the facts and circumstances call more basis of the claimant's right," and, loudly for modification or change of if this is one of the orders from the commission's orders than other which an appeal may be taken, it facts and circumstances, and that necessarily follows that the commis- there are certain orders of the comsion is empowered to make orders mission to which modification or

denying the right change can have application with Workmen's compensation-rev

of a claimant to more reason than certain other orocation of

continue to partici- ders, but the language of the section award.

pate in the fund up- above quoted is so general that any on grounds going to the basis of the effort to draw the line between one claimant's right. It should not be finding or order and any other findnecessary to look to the provisions ing or order must necessarily create of any other section to determine endless confusion. the proper construction to be given We are not unmindful that the to the above-quoted language in § foregoing construction of § 1465-86 1465–86. It is impossible to find runs counter to the former decision any ambiguity in the language em- of this court as declared in the case ploved, and by its terms power and of State ex rel. Munding v. Indusjurisdiction are clearly conferred trial Commission, 92 Ohio St. 434,

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