Overholser v. National Home for Disabled Volunteer Soldiers

• Decision Date: 28 April 1903
• Citation: 68 Ohio St. 236,67 N.E. 487
• Parties: OVERHOLSER v. NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS.
• Court: Ohio Supreme Court

67 N.E. 487

68 Ohio St. 236

OVERHOLSER v. NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS.

Supreme Court of Ohio.

April 28, 1903

Error to Circuit Court, Montgomery County.

Action by Neil Overholser against the National Home for Disabled Volunteer Soldiers. Judgment for plaintiff in the court of common pleas was reversed by the circuit court, and he now brings error. Affirmed.

This action was begun by a petition in the court of common pleas of Montgomery county, of which the following is a copy ‘ The plaintiff, Neil Overholser, says that the defendant, the National Home for Disabled Volunteer Soldiers is a corporation duly incorporated and organized under the laws of the United States, under section 4825, and the following sections of chapter 3, title 59, of the Revised Statutes of the United States. Said corporation owns and controls, under said laws, a large body of land, located in Jefferson township, Montgomery county, Ohio, covered with barracks, dwellings, hospitals, gas and other manufactories with all the necessary and convenient accommodations for the support of over 5,000 persons in what is known as the ‘ Central Branch of the National Soldiers' Home,’ and has possession of about 700 acres of land, the management and control of over 5,000 inmates, and all the machinery manufacturing, and general apparatus of said institution including sewerage. The plaintiff says that upon said land the defendant has constructed, for the use of said home, a number of tanks in which it is accustomed to keep in storage a large quantity of crude oil for use for lighting, heating, and manufacturing purposes; that it has also constructed upon said grounds a number of artificial lakes or reservoirs, in which it has collected large bodies of water, not naturally subject to be collected upon said grounds; that, among other things, said home owns and controls and manages a large hospital, in which there are continually under treatment a large number of the inmates of said institution, from which a large quantity of sewerage results, which is carried away and disposed of by said defendant. The plaintiff says that he is the lessee of a tract of land, comprising about twelve acres, located partly in Dayton, Ohio, and partly in Harrison township, Montgomery county, Ohio, at the corporation line of said city, and between it and the said Central Branch of the National Soldiers' Home; that a creek or branch, sometimes known as ‘ Dry Hollow,’ leads down from the land of said defendant, which is located upon an elevation above that so leased by plaintiff, to and across the land so leased. On the 4th day of June, 1896, the lands so leased by the plaintiff were all in a high state of cultivation, he having planted the same in garden truck of various kinds, and devoted a great deal of care and attention to the same, so that all of the crops growing thereon were in good, sound, healthy condition, many of same being almost ready for market. On that day, through the negligence of the employés of the defendant, and without any fault or contributory negligence on the part of the plaintiff, a large quantity of water which had been artificially collected by the defendant in one or more of the lakes aforesaid was, without right so to do on the part of the defendant, discharged into the said Dry Hollow, and precipitated in a flood upon the lands so leased by the plaintiff. At the same time, through the negligence of the defendant, without any right on its part so to do, without any fault or neglect on the part of the plaintiff, a large quantity of oil was discharged from the cisterns and reservoirs in which the defendant had collected the same, and in addition thereto a large quantity of sewerage, consisting of vile, noxious, and foul-smelling substances, arising from said hospital and the use of same by defendant, were carried down and collected by it in artificial sewers, and all of said substances were discharged by the defendant into the said Dry Hollow, and, together with and by means of said volume of water, were carried down and lodged and discharged upon the lands so leased by the plaintiff as aforesaid. As a result, more than six acres of his lands were wholly submerged, and after the subsidence of the water the foul substances aforesaid were left and deposited thereon in such a way and to such an extent that a large part of his crops, consisting of potatoes, red beets, turnips, cucumbers, beans, and peas, etc., were utterly and wholly destroyed, and the remainder were so soaked and permeated with the foul substances aforesaid as to be rendered utterly unfit for market or for use in any way. The plaintiff says that the defendant, having undertaken to collect the water, oil, and other substances on said ground, was bound to so restrain and control the same as not to permit their escape to the damage of the plaintiff. The plaintiff says that he has been damaged by reason of the premises in the sum of three hundred dollars, for which, with interest, he asks judgment.'

Defendant answered as follows: ‘ Said defendant admits its incorporation, that it owns and controls the real estate (over 500 acres) described in plaintiff's petition, and the averments as to the number of inmates cared for by defendant. The tanks and artificial bodies of water are located on the real estate as described in plaintiff's petition. Admits the ownership of the real estate in plaintiff as set out in plaintiff's petition. Denies each and every other allegation in said petition contained. Wherefore, prays to be dismissed for its costs herein.’

The trial in the court of common pleas resulted in a verdict for the plaintiff. A motion for a new trial was made and overruled, and a bill of exceptions taken, and judgment on the verdict for plaintiff. On petition in error in the circuit court, the judgment of the court of common pleas was reversed, as follows: ‘ This day came on the above cause for hearing upon the petition in error, and was argued by counsel. Upon consideration of the same, the court finds there was error in the charge of the court as to the degree of care required of the plaintiff in error; also in refusing to charge as requested by the plaintiff in error, in special charge No. 10. The court further being of the opinion that, upon the pleadings and the facts in the case, there was no liability upon the part of the plaintiff in error, it being part of the government of the United States, it is ordered that the judgment rendered be reversed, and that the petition of the plaintiff in error be dismissed at the cost of defendant in error, and that this cause be remanded to the court of common pleas for execution. To all of which findings, and to which judgment and order, the above-named defendant in error, Neil Overholser, by his attorneys, excepts.’

To reverse this judgment of the circuit court, a petition in error is filed in this court. Among the assignments of error is the following: ‘ Said circuit court erred in finding that the defendant in error is part of the government of the United States, and that for this reason there was no liability upon its part to the plaintiff in error.’

National Soldiers' Home is part of United States government and cannot be sued in tort; grant of power to sue and be sued at law and in equity applying only to matters within scope of its other corporate powers.

Syllabus by the Court

1. The National Home for Disabled Volunteer Soldiers is a...