Workmen's
compensation - Injuries in course of employment - Street
cleaner assaulted for warning another of violation of
ordinance.
Where
one employed by a municipality as a street cleaner, while so
engaged, tells a person who has swept dirt into the street
in violation of & city ordinance, that he is "violating
said ordinance," whereupon the street cleaner
continuing his work, Is violently assaulted from behind and
injured by such person, without provocation, such injury iS
sustained "in the course of his emPloyment" under
the terms of the Workmen's Compensation Act.
The
original action in this case was an appeal to the court of
common pleas from the finding of the Industrial Commission of
Ohio adverse to the claim for indemnity of plaintiff in
error, disallowing it upon the ground that his disability did
not result from an injury sustained in the course of his
employment.
The
facts necessary to a solution of the problem presented are
set forth in the amended petition as follows:
"Plaintiff
says that his disability did result from injury sustained in
the course of his employment as hereinafter set forth, and
the said finding of defendant was on a ground which went to
the basis of his right, and that such finding denied to
plaintiff the right to participate at all in the in- surance fund of the state of Ohio. Thereupon
to wit, on March 3, 1921, he filed his appeal in this court
and thereafter, to wit, on March 30, 1921, he filed his
petition herein according to the law in such cases.
"Plaintiff
says that prior to and on the 23d day of October, 1920, he
was employed by the city of Cleveland, Cuyahoga county, Ohio,
as a street cleaner, and on said 23d day of October, 1920, at
about 7:30 o'clock a. m. while in the course of his
employment, to wit, cleaning a portion of Euclid avenue at a
point opposite or near 327 Euclid avenue, in said city, one
Edward Bell swept dirt into said street contrary to the
ordinance that no dirt shall be swept into any street in said
city. Plaintiff told said Bell that he was violating said
ordinance. Section 705 of the city ordinance as compiled in
1921 is as follows:
"`No
person shall throw or deposit or permit to be thrown or
deposited, any dirt, paper, filth, sweepings of any
storehouse, shop or office, or any ashes, shavings, filthy
water, offal, straw, wood, stones, earth, manure, refuse
matter or rubbish of any kind whatever into any street, lane,
alley, or public ground, or place used as street, lane, alley
or public ground. (R. O. Section 1663)'
"Thereupon
plaintiff continued his said work of cleaning said street,
and said Bell approached him from behind and assaulted and
struck him and then and there struck him several times in
several places on his person, and one of said blows was in
his left eye which caused him severe injury, by reason of
which he lost totally and permanently the sight of his said
left eye.
"Plaintiff was at said time earning about
$33 per week,
"Wherefore
plaintiff prays that on the trial of this case the jury find
that said disability did result from an injury sustained in
the course of his employment and that the court enter
judgment herein ordering the defendant to pay the plaintiff
the maximum amount allowed by law for the loss of time from
his employment by reason of such injury, and the total loss
of one eye."
An
answer which is simply a general denial was filed to the
foregoing amended petition, and upon the pleadings thus
tendering the issue the parties went to trial, at which time
the following stipulation was entered into between counsel:
"By
agreement of counsel it is stipulated that plaintiff may
amend his petition, by adding in the next to the last line of
the prayer, after the words, `loss of,' the following:
`Time from his employment by reason of such injury, and total
loss of.'"
The
trial proceeding, the plaintiff was called to the stand, and
upon the first interrogation addressed to him by his counsel
the record discloses as follows:
"Q.
What is your name?
"Whereupon
counsel for defendant objected to the introduction of any
evidence, on the ground that the petition herein does not
state facts sufficient to constitute a cause of action, and
also upon the ground that there is no jurisdiction conferred
upon this court by this petition.
"Whereupon
counsel for plaintiff was given leave to amend his petition.
"The
Court: With reference to the second ob-
jection, I think with the amendment to the petition,Mr.
Gilbert has performed all of the necessary preliminary steps.
The objection to the introduction of evidence will be
sustained on the other ground.
"To
which ruling of the court counsel for plaintiff then and
there duly excepted.
"The
foregoing was all of the evidence offered by either party on
the trial of this cause.
"Whereupon
the court rendered its decision against the plaintiff and in
favor of the defendant, as appears of record in the
cause."
A
motion for a new trial was interposed, which was overruled,
and judgment was rendered in favor of defendant, the
Industrial Commission of Ohio. Error was prosecuted to the
Court of Appeals, which court affirmed the judgment of the
court of common pleas, and error is now prosecuted to this
court to reverse that judgment.
Mr.
Gilbert Morgan and Mr. Edward W. MeGraw, for plaintiff in
error. Mr. Edward C. Stanton, prosecuting attorney, and Mr.
George C. Hansen, for defendant in error.
