Fleischman Const. Co. v. Burns
| Decision Date | 08 November 1922 |
| Docket Number | 3638. |
| Parties | FLEISCHMAN CONST. CO. v. BURNS. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Irwin N. Loeser, of Cleveland, Ohio (Mooney, Hahn, Loeser & Keough and M. P. Mooney, all of Cleveland, Ohio, on the brief), for plaintiff in error.
Anderson Lamb & Osborne, of Youngstown, Ohio, and J. J. Tetlow, of Cleveland, Ohio, for defendant in error.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
The defendant in error obtained a judgment in the District Court against the plaintiff in error, for damages for personal injuries received by him while in the employ of the Fleischman Construction Company as a bricklayer engaged in the erection of a theater building in Cleveland, Ohio.
It is admitted that at the time Burns sustained these injuries that his employer, the Fleischman Construction Company, had complied with the Workmen's Compensation Law of Ohio, and that under the provisions of that law (sections 1465-- 70, 1465-- 76, G.C.) Burns would have no right of action against it to recover compensation for the injuries sustained by him in the course of his employment unless such injuries were occasioned by the willful act of his employer or any of such employer's officers or agents, or for the failure of such employer or any of such employer's officers or agents to comply with any lawful requirements for the protection of the lives and safety of employes.
It was claimed in the trial court upon behalf of the plaintiff Burns, that the Fleischman Construction Company, its officers and agents, had failed to comply with the provisions of section 12593 of the General Code of Ohio, which section reads as follows:
'Whoever, employing or directing another to do or perform labor in erecting, repairing, altering or painting a house, building or other structure, knowingly or negligently furnishes, erects or causes to be furnished for erection for and in the performance of said labor unsuitable or improper scaffolding, hoists, stays, ladders or other mechanical contrivances which will not give proper protection to the life and limb of a person so employed or engaged, shall be fined not more than five hundred dollars or imprisoned not more than three months, or both.'
The application of this section of the General Code of Ohio to the facts of this case was challenged by a motion to direct a verdict for the defendant at the close of plaintiff's evidence and again at the close of all the evidence and also by exceptions taken to the charge.
The defendant in error has not appeared either in person or by counsel in this court and has filed no brief.
Since the trial of this case in the District Court, the Supreme Court of Ohio, in the case of Albert F. Patten v. Aluminum Castings Co., 105 Ohio St. 1, 136 N.E. 426, has held that the provisions of section 12593 of the General Code of Ohio do not comprise lawful requirements within the meaning of section 35 of article 2 of the Constitution of Ohio, or section 1465-- 76 of the General Code of Ohio.
To the same effect is the holding of the Supreme Court of Ohio in American Woodenware Manufacturing...
To continue reading
Request your trial
-
In re Roberds, Inc., Bankruptcy No. 03-30194.
...court's obligation to follow an interpretation of a state statute by the highest court of a state. See, e.g., Fleischman Constr. Co. v. Burns, 284 F. 358, 360 (6th Cir.1922) ("The federal courts will not review or reverse the judgment of a state court of last resort construing a state statu......
-
Le Sueur v. Manufacturers' Finance Co.
... ... Cole, 256 U.S. 222, 41 ... Sup.Ct. 467, 65 L.Ed. 900; Construction Co. v ... Burns, 284 F. 358, decided by this court November 7, ... 1922. It follows that plaintiff was entitled ... ...