Hay v. Norwalk Lodge No. 730, B.P.O.E.

• Citation: 109 N.E.2d 481,92 Ohio App. 14
• Parties: , 49 O.O. 189 HAY v. NORWALK LODGE NO. 730, B. P. O. E. et al.
• Decision Date: 22 October 1951
• Court: United States Court of Appeals (Ohio)

Page 14

92 Ohio App. 14

109 N.E.2d 481, 49 O.O. 189

HAY v. NORWALK LODGE NO. 730, B. P. O. E. et al.

Court of Appeals of Ohio, Huron County.

Oct. 22, 1951.

Syllabus by the Court.

1. In the absence of statutory authority, an unincorporated organization or association known as a lodge is not a legal entity subject to be sued.

2. Every person may make such use as he will of his property, provided he uses it in such manner as not to invade the rights of others.

3. Although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto or to ascertain defects which may result in injury to a

traveler on the highway, an owner having knowledge, actual or constructive, of a patently defective condition of a tree which may result in injury to a traveler must exercise reasonable care to prevent harm to a person lawfully using the highway from the falling of such tree or its branches.

Catri & Catri, Sandusky, for appellant.

G. Ray Craig, Miller & Miller and Carpenter & Carpenter, Norwalk, for appellees.

FESS, Presiding Judge.

This is an appeal on questions of law from a judgment sustaining a demurrer to the second amended petition, on the ground that it fails to state a cause of action. Plaintiff not desiring to further plead, the action was dismissed.

Plaintiff, as administratrix, brought her action against the Norwalk Lodge of the Benevolent and Protective Order of Elks, five individuals as trustees of the lodge, and one Harry E. Sanders. It is alleged that the five individual defendants are the trustees of a nonincorporated organization known as Norwalk Lodge No. 730, Benevolent and Protective Order of Elks. The first ground of the demurrer, which was overruled, was a defect of parties defendant and want of legal capacity in the defendants named as trustees to be sued.

It is elemental that an unincorporated organization or association, in the absence of statute, is not a legal entity subject to be sued. State v. Fremont Lodge of Loyal Order of Moose, 151 Ohio St. 19, 84 N.E.2d 498; Koogler v. Koogler, 127 Ohio St. 57, 186 N.E. 725. In the absence of statutory authority to sue the organization, the action may be brought against the individual members.

Sections 9462 to 9509, General Code, dealing with fraternal organizations, make no provision for suits by or against such organizations. In the Koogler case, supra, the opinion recites that the defendant lodge was a fraternal benefit society under Section 9462, General Code, and that by virtue of Section 10060, General Code, such society could be sued. But an examination of Section 10060 indicates that it refers to secret benevolent associations referred to in Section 10057 General Code. Cf. 77 Ohio Laws, 146. But in passing upon the demurrer, a court my not take judicial notice of the fact that the defendant lodge is a secret benevolent association or a fraternal benefit society. The demurrer must be decided on the allegation of the petition, which in the instant case is that the defendant is a nonincorporated organization. It follows that, as to the lodge and the individual defendants as trustees, the demurrer was properly sustained.

As indicated above, the trial court overruled the demurrer on the ground of want of capacity to be sued, but sustained it on the ground that the petition fails to state a cause of action.

The more pertinent allegations of the petition are as follows:

The decedent was operating a truck in a northerly direction on New State road when a large limb or limbs fell from a tree located on the land of the defendants on the easterly side of the highway and struck the top of the cab, forcing the same onto decedent's body, injuring him so that he lost control of the truck, crashed into a tree, and died as a result of his injuries. The defendant lodge was the owner of land on the east side of the road and the defendant Sanders was the owner of land south of and adjacent to the land of the lodge; and there was an established fence line thirty feet east of the center line of the highway.

Plaintiff alleges further that for a number of years a tree was located at the intersecting point of the established boundary line between the defendants' properties and the established fence line running parallel to the New State road; that said tree had grown very large and parts of the many large limbs of the tree owned by the defendants extended over and above the traveled portion of the New State road; that several years prior to July 20, 1949, said tree was struck by lightning, extensively damaged and weakened; that the damage to the tree was visible and apparent to these defendants for a period of several years; that after said tree was struck and damaged by lightning, apparent natural processes of decay set in and further weakened said tree and its branches which extended over and above the traveled portion of the road; that at all times herein mentioned defendants had knowledge that portions of said tree extended over highway; that for a period of several years the defendants had knowledge that the tree had been struck by lightning, and had knowledge that the tree had been damaged and weakened; that the defendants negligently allowed and permitted said tree to remain in a damaged, weakened and defective condition near said highway when they knew that portions of said tree were damaged, weakened and defective and would fall in said highway and injure travelers thereon; and that defendants failed and neglected to remove the tree or the damaged or weakened portions thereof, failed and neglected to wire or brace the damaged or weakened portions thereof or to do anything by way of making said tree secure, and failed and neglected to give notice to the traveling public of the defective, weakened and damaged condition then and there existing.

Upon this phase of the appeal we are required to determine whether the above allegations state a cause of action against the owner of the property abutting the highway.

It is singular that no reported decision in Ohio, directly in point, has been brought or has come to our attention. Gschwind v. Viers, 21 Ohio App. 124, 152 N.E. 911, holds merely that a charge that the owner of property upon which a tree was situated had the duty to exercise ordinary care for the safety of pedestrians using the sidewalk is as favorable as plaintiff had a right to ask. Since the verdict was for the defendant, the court was not called upon to determine the correctness of the charge, nor was it incumbent upon the court to grant final judgment.

2 Restatement of the Law of Torts, 985, Section 363, recites:

'Neither a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway.' The caveat to the rule is significant:

'The Institute expresses no opinion as to whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.'

We start with the premise that every person may make such use as he will of his own property, provided he uses it in such manner as not to invade the rights of others.

Carman v. Steubenville & Indiana Rd. Co., 4 Ohio St. 399, 415; Frazier v. Brown, 12 Ohio St. 294, 299; City of Tiffin v. McCormack, 34 Ohio St. 638, 644, 32 Am. Rep. 408; Louden v. City of Cincinnati, 90 Ohio St. 144, 152, 106 N.E. 970, L.R.A.1915E, 356, Ann.Cas.1916C, 1171.

Conversely, the law does impose upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact and to use his own property in such a manner as not to injure that of another. Philadelphia Fire & Marine Ins. Co. v. Hirschfield Printing Co., 73 Ohio App. 27, 29, 53 N.E.2d 827. The cases upon which this principle is based relate to negligent acts resulting in injury to another's property as distinguished from passive acquiescence in respect to a hazardous condition upon the owner's premises.

With respect to the liability of the owner of a decayed tree to persons injured off the premises, the English and American cases are in conflict. A distinction is drawn between the liability of an owner of an artificial structure toward one injured in the street or highway by a falling object, and the owner of a decayed tree. The maintenance of an artificial structure, such as a sign or shutter overhanging a...