structed as to cast water from its conductor pipe upon the sidewalk in such a way as to freeze and render the sidewalk unsafe for pedestrians.

e. Notice of, and time for remedying, condition.

In Skelton v. Thompson (1883) 3 Ont. Rep. 11, the view seems to have been taken that an abutting owner could not be held liable for injuries from a fall on the adjoining sidewalk, even though the cause of such fall was an accumulation of ice formed from water discharged upon the walk by a pipe connecting with the eaves troughs of the building, unless he knew, or ought to have known, of the existence of such accumulation of ice, and failed to remove it within a reasonable time. It is stated in the opinion that it is unnecessary to discuss the question whether it was or was not lawful to have the spout in use as it was, since no injury was caused by the spout, or by the mere fact of its discharging water on the sidewalk, as it was not the flow of water, but the action of the weather thereon, that made the obstruction. In that case it appeared that the ice upon which the plaintiff fell had formed within two or three hours before the accident occurred, and that the abutting owner had no knowledge of its formation, and ought not reasonably to have known of it. And an inference to the same effect

is found in Stephens v. Deickman (Striger v. Deickman) (1914) 158 Ky. 337, 51 L.R.A. (N.S.) 309, 164 S. W. 931, where the court, in speaking of the duty of a property owner with respect to conducting water from the roof of his house to the sidewalk, says that, in case an obstruction or nuisance arises therefrom suddenly or unexpectedly, it is his duty to remove the obstruction or nuisance as soon as he has knowledge of its existence, or could have such knowledge by the exercise of ordinary care.

And a similar intimation is found in Davis v. Rich (1901) 180 Mass. 235, 62 N. E. 375, where the water was alleged to have reached the walk because of a hole or defect in the defendant's spout or conductor pipe.

And in some other cases such as Dow v. Interborough Rapid Transit Co. (1918) 185 App. Div. 10, 172 N. Y. Supp. 623, and Organ v. Toronto (1893) 24 Ont. Rep. 318, it appeared that the ice had been on the walk for some time before the accident occurred.

But in Isham v. Broderick (1903) 89 Minn. 397, 95 N. W. 224, 14 Am. Neg. Rep. 112, it is stated that if a conductor pipe which discharges water on or near the sidewalk, by its natural operation, causes the formation of ice thereon and creates a nuisance, the owner must be presumed to know it. M. A. L.

V.

Evidence, § 155

Headnotes by the COURT.

vorced, it is the duty of the commission to revoke the award already made and to make an award to the widow of the lawful marriage. Workmen's compensation, § 86 death of beneficiary effect.

4. The right of a widow to participate in the state insurance fund is not lost by the death of such widow before an award has been rendered thereon, but the legal representative of such widow, in the absence of other dependents, is entitled to an award covering the period from the time of the death of the employee until the death of such widow.

[See 28 R. C. L. 782; 4 R. C. L. Supp. 1851. See also notes in 15 A.L.R. 821; 24 A.L.R. 441; 29 A.L.R. 1426.]

Statement by Marshall, Ch. J.:

This proceeding involves a review of orders of the Industrial Commission of Ohio.

On September 28, 1917, Hiram J. Plumsteel was killed while in the course of his employment at the plant of F. O. Schoedinger, Columbus, Ohio. Plumsteel was married in Canada in 1875, and lived with his wife, Sarah, at Niagara Falls, in New York, for many years, that state being the last domicil of the marriage. Seven children were born of that marriage, some of whom are deceased, and others of whom are of age and were married and earning their own living prior to the death of their father. Plumsteel was a traveling salesman, and was away from home a great deal, being absent for periods varying from a few weeks to several months. About the year 1904 he left on one of his trips, and thereafter never returned to or even visited his family. Between 1904 and the time of his death he made his headquarters in various cities in Ohio, and apparently acquired a residence in Columbus, Ohio, many years before his death, because the record shows that he was an owner of real estate

in Columbus in 1914. It is not shown that there was ever any trouble between Plumsteel and his family in New York state, and there is some testimony that he had trouble with his creditors which necessitated his remaining out of New York state for a while. There is evidence tending to show that he made regular contributions to his family of $50 a month until about the year 1912 or 1913. The wife, Sarah, was a helpless invalid for many years prior to the death of her husband, Hiram, and the children wrote frequently to their father, urging support for the mother, without results, one of such letters being as late as July, 1917. The record fairly shows that Hiram rendered no aid to his wife, Sarah, later than the year 1913.

In the year 1915 Plumsteel was married, at Columbus, Ohio, to one Maggie Berg; the marriage being solemnized under due form of law. The record shows that Plumsteel represented to Maggie Berg that his first wife was dead. He frequently made the same statement to the brother of Maggie Berg, and also to Mr. Mecartney, his attorney. does not appear that he ever made

the statement to anyone that he was ever divorced from his first wife. On the other hand, there is no evidence in the record even tending to show that he was not divorced from his first wife.

Immediately after his death, Maggie Berg filed an application with the Industrial Commission for compensation, and was, about October, 1917, awarded the full amount due to a person wholly dependent. Soon thereafter the first wife, Sarah, learned of the death and also made application to the Industrial Commission, whereupon, on November 21, 1918, the order made in favor of Maggie Berg was revoked and further payments thereon suspended, on the ground that she was not the widow of the deceased or a statutory dependent within the meaning of the law. The commission also refused the application of Sarah, on the ground that she was not a dependent, because she was not living with the deceased at the time of his death and had not been supported by him for several years prior thereto.

Both women filed an appeal from the order of the commission in the court of common pleas of Franklin county, and the causes were later consolidated and have ever since been carried as one cause. Before the case came on for trial Maggie Berg was again married to one Lederer, and later died, and David E. Evans was appointed administrator and the cause revived in the name of the administrator. Sarah Plumsteel also died before the case came on for trial in the court of common pleas, and the action was revived as to her in the name of Maud E. Dell, executrix.

The court of common pleas decided that Maggie Berg was not a lawful wife, and also that she was not a member of Plumsteel's family, and therefore did not come within the Workmen's Compensation Law. The court further found that Sarah Plumsteel was not dependent upon her husband at the time of his

death, within the meaning of the Workmen's Compensation Law.

Error was prosecuted by both estates to the court of appeals, and the court of appeals affirmed the judgment as to the estate of Maggie Berg, but reversed as to the estate of Sarah Plumsteel, and remanded the cause to the court of common pleas for further proceedings on the claim of Maud E. Dell, as executrix of Sarah Plumsteel. Thereupon the Industrial Commission and David E. Evans, as administrator of the estate of Maggie Lederer, prosecuted error to this court.

Messrs. John G. Price, Attorney General, and R. R. Zurmehly, for plaintiff in error:

Sarah E. Plumsteel was not residing with Hiram J. Plumsteel at the time of his death, and no evidence was offered to show that she was dependent upon him at the time of his death, as provided by the Workmen's Compensation Law.

Nelson's Case, 217 Mass. 467, 105 N. E. 357, 5 N. C. C. A. 694; Gallagher's Case, 219 Mass. 140, 106 N. E. 558; Newman's Case, 222 Mass. 563, L.R.A. 1916C, 1145, 111 N. E. 559; Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, L.R.A.1916A, 366, 142 N. W. 271, Ann. Cas. 1915B, 877; Roberts v. Whaley, 192 Mich. 133, L.R.A. 1918A, 189, 158 N. W. 209; New Monckton Collieries 'v. Keeling [1911] A. C. 648, 80 L. J. K. B. N. S. 1205, 105 L. T. N. S. 337, 55 Sol. Jo. 687, 27 Times L. R. 551, 4 B. W. C. C. 332, 6 N. C. C. A. 240—H. L.; Lindsay v. M'Glashan [1908] S. C. 762, 45 Scot. L. R. 559, 1 B. W. C. C. 85 Ct. of Sess.; Devlin v. Pelaw Main Collieries, 5 B. W. C. C. 349-C. A.; 1 Honnold, Workmen's Comp. pp. 245, 246, § 76; Boyd, Workmen's Comp. § 234, p. 612; Karpati v. Gambria Steel Co. 70 Pa. Super. Ct. 202.

Maggie "Plumsteel" clearly was not the wife of the deceased, and was not entitled to receive compensation on account of his death.

Keener v. Grand Lodge, A. O. U. W. 38 Mo. App. 543; Armstrong v. Industrial Commission, 161 Wis. 530, 154 N. W. 845; Temescal Rock Co. v. Industrial Acci. Commission, 180 Cal. 637, 13 A.L.R. 673, 182 Pac. 447.

Awards cannot be made to legal representatives of dependents.

Doyle v. Baltimore & O. R. Co. 81

pendent, and therefore entitled to an award to the full limit of the provisions of § 1465-82, General Code. Thereafter the commission determined that she was not the lawful wife of Hiram Plumsteel, and revoked the order and discontinued the payments. Section 146586, General Code, provides: "The powers and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as in its opinion may be justified."

The continuing jurisdiction of the commission is further recognized in § 1465-90, wherein provision is made for appeal from certain orders of the commission to the court of common pleas; it being provided that appeal may be made from the final action of the commission denying the right of the claimant to participate at all or to continue to participate in the fund on certain grounds, including "any other ground going to the basis of the claimant's right."

When § 1465-86 was enacted, § 1465-90 was also enacted, but the latter section did not originally include the right to appeal from an order denying the right to "continue to participate" in the fund. Surely the question whether the claimant is in fact a dependent goes "to the basis of the claimant's right," and, if this is one of the orders from which an appeal may be taken, it necessarily follows that the commission is empowered to make orders

upon the commission to modify or change any findings or orders as in its opinion may be justified. In making an award the commission makes both a finding and an order. It must find the essential facts to entitle the claimant to participate in the fund, and then make the order for payment. The section contains no qualifying words. No reasons are required to be stated, and it is only necessary that the change or modification may find justification in the opinion of the members of the commission. That section is of course in pari materia with all the other sections of the Workmen's Compensation Law, and the commission may not run counter to other provisions or modify or change its orders in such manner as to run counter to other sections; neither may such modifications or changes be arbitrary or groundless. It is well understood that the primary purpose of a continuing jurisdiction is to give a board or tribunal the power to modify or change a judg ment or order to meet changed conditions, or to do justice in the light of newly discovered evidence, or to correct an order which was made as the result of fraud or imposition, or an order which would not have been made if certain facts later discovered had then been known to exist. It is easy to conceive that certain facts and circumstances call more loudly for modification or change of the commission's orders than other facts and circumstances, and that there are certain orders of the commission to which modification or change can have application with more reason than certain other orders, but the language of the section above quoted is so general that any effort to draw the line between one finding or order and any other finding or order must necessarily create endless confusion.

We are not unmindful that the foregoing construction of § 1465-86 runs counter to the former decision of this court as declared in the case of State ex rel. Munding v. Industrial Commission, 92 Ohio St. 434,