EMPLOYEE OF OHIO COMPANY INJURED OUTSIDE OF THE STATE.

Court of 'Appeals for Hamilton County.

#### The Industrial Commission of Ohio, Wallace D. Yaple, M. B Hammond, and T. J. Duffy, Comprising the Said Commission, v. Lena Ware.

Decided, 1919.

*Workmen’s Compensation Act*— Not *Applicable to Employee of Ohio Company*— But *Injured Outside of the State, When*— Claim *of Lawful Wife not Barred by Bigamous Marriage*— Evidence—Jury *May not Return a Yerdiot Fixing Compensation to be Paid in a Lump Sum.*

1. The Industrial Commission of Ohio is not liable for the death of a workman occurring outside the state, when he was neither hired in Ohio, nor employed to work there, merely because he was in the employ of a concern that complies with the Ohio workmen’s compensation law.

2. The workmen’s compensation law may have some extra territorial operation.

3. The fact that the decedent had contracted a bigamous marriage does not bar the claim of his lawful wife.

4. A question to a witness is not improper as tending to impeach a witness previously called by the same party merely because the .answer might incidentally reflect upon such other witness, if the evidence to be elicited thereby tends to prove any fact relevant to the issues.

5. In cases arising by way of appeal from the decision of the Industrial ■Commisison denying the right of a claimant to participate in the state insurance fund, a jury is without power to return a verdict fixing compensation to be paid in a lump sum.

*John V. Campbell,*Prosecuting Attorney and *Henry G. Hauck,*Assistant Prosecuting Attorney, Attorneys for Plaintifü. *Fulford, Shook & Wilby,*contra.

Shohl, J.

Lena Ware brought suit against the Industrial Commission of Ohio in the court of common pleas of Hamilton county, Ohio, alleging that she was the widow and dependent of Sam Ware, *8who was killed in the course of his employment while working for Platt & Dickinson, contractors, who were members of and participants in the state insurance fund of Ohio. Compensation had been refused by the commission. Judgment was rendered in her favor in the court of common pleas, and the Industrial Commission brought the case to this court on error. This court decided that the trial court was without jurisdiction and reversed the case on that'ground.

Lena "Ware then took the case on error to the Supreme Court, and that court reversed the judgment of the court of appeals, and by its mandate directed this court to consider all the allegations of error.

The ease was again presented and is now submitted to this court for decision. We are guided only by the mandate of the Supreme Court from which it is apparent that the tribunal regarded the provisions of Section 1465-90, requiring the action to be brought in the county in which the injury occurred, to be directory and not mandatory. Other questions "were argued in the briefs, but not decided.

The most important question arose out of the overruling by the court of "the motion for judgment on the pleadings, filed by the Industrial Commission. The petition which is required by statute, Section 1465-90, to be in ordinary form, after alleging the representative capacity of the members of the Industrial Commission says:

> "Appellant further states that she is the widow of Sam Ware, deceased, and that at the time of his death, and prior thereto she was his wife, and as such dependent upon him for support. That on or about the 30th day of July, 1915, her said husband, Sam Ware, was employed by Messrs. Platt & Dickinson, brick work contractors who were members of and participants in the state insurance fund of Ohio; that while working for said Platt & Dickinson, in Covington, Ky., a brick fell from the top of the structure on which he was working for the said Platt *&*Dickinson, causing his death, on or about the said 30th day of July, 1915. That at the time he was killed, as aforesaid, and prior thereto, he was working as a hod carrier and receiving wages of $3.40 per day.”

*9Then follows a statement of the application to the commission, and the disallowance of the claim.

The foregoing extract contains all the averments in respect to the employment and the injury of Sam Ware.

It will be noted that it is not averred that the contract of employment was made in Ohio, or that the labor was to be performed in Ohio. It does appear that the injury took place in the State of Kentucky.

The bald question is presented as to whether the Industrial Commission of Ohio can be liable for injuries to a workman neither hired in Ohio, nor employed to work there, because he is employed by a concern that does comply with the Ohio laws. The record discloses no evidence in respect to these matters, absence of which in the pleadings has just been noted.

There are at least three different types of questions that arise in consideration of the extra territorial operation of the workman’s compensation law. An Ohio employer may hire a workman who lives in Ohio in different ways. First, a workman may be employed in Ohio.to do work partly or primarily in Ohio, and be injured while temporarily or casually out of the state. Second, a workman may be employed in Ohio to do work entirely outside the state, and receive injuries at such place of work. Third, a workman may be employed outside the state of Ohio to do work entirely beyond the limits of the state, and be injured at the place of work.

It will be seen that the foregoing examples are not intended to be exhaustive of the possible situations.

An illustration of the first type of case is *Spratt*v. *Sweeney & Gray Company,*168 App. Div. (N. Y.) 403. There an employee was required to go from New York into New Jersey for two days. His absence from New York was regarded by the court as a mere incident to the employment within the state.

The second type is illustrated by the ease of *Gardner*v. *Horseheads Construction Co.,*171 App. Div. (NY.) 66. It was adjudicated in that case:-

> “Where an employee of a general contractor, with an office in this state, has not performed any services here for several years, *10and Ms contract of employment did not contemplate any work within the state, no recovery may be had under the statute for his death sustained while employed in the state of Pennsylvania. He was engaged in an independent service in a foreign state, which employment does not come within the benefit of the statute.”

It is interesting to note that while the decision in the case of *Post*v. *Burger & Gohlke,*216 N. Y., 544, has language which might appear to be inconsistent with the Gardner case, the facts in the Post case are regarded by the court, at page 68 of the opinion in 171 App. Div., as distinguishing. Further color is given to the inference that the cases are not in conflict by the decision in the case of *Smith*v. *Heine Safety Boiler Co.,*224 N. Y. 9 (119 N. E. 878), wherein both the Post case and the Gardner ease appear to be cited with approval.

So far as we have been able to determine there never has been any decision stating that a case of the third type was within the provisions of the Workmen’s compensation law.

Judge Merrell, of the superior court of Cincinnati, in the case of *Cody*v. *Packet Co.,*15 N.P.(N.S.), 529, states that a case of the so called third class would not give the injured person any right to relief, regarding it as falling within the rule of *Alexander*v. *Pennsylvania R. R. Co.,*48 O. S., 623.

It becomes important to determine the nature of the right of the injured person rising under the compensation law. That question is the subject of an article by Ernest Angell, 31 Harvard Law Review, 619. The author states that text writers and courts have demonstrated that the right to claim or the duty to pay compensation does not arise out of tort. A discussion follows as to whether the duty or right are imposed by law or arise from the relation, after the relation has been created by contract. The American authorities are commented upon. The general subject is likewise discussed in the note in L. R. A., 1916 A, 443, and in the decision of *Gooding*v. *Ott,*87 S. E., 862 (W. Va.), L. R. A. 1916 D, 637.

The authorities are not uniform and we regard it as improper to express our views now upon cases of the second type because that question is not before us. However, we regard the decision *11of the Supreme Court in this case as necessarily implying that there may be liability in a case of the first type.' If there could not have been any extra territorial operation of the workmen’s compensation law, it would have been useless for the Supreme Court to have directed us to consider the other errors assigned.

Whether an injured workman can recover compensation from the commission, when he is employed in Ohio to do work entirely without the state, or whether a workman employed outside the state to do work partly within and partly without the state, has any rights must be left for adjudication when those cases arise. It is clear that to come within the policy of the statute the claimant must be an Ohio workman. lie must be either employed in Ohio or employed to work in Ohio. So far as the allegations of the petition show neither of these elements was present. There is no room for a difference of opinion as to the construction of the allegations of the petition. There can be no possible inference to be drawn of the plaintiff to the effect that because he was working for a contractor of Ohio, or he made his contract there, or that his contract called for work to be done there. Without either of these averments it can not be said that the petition alleges that Ware was an Ohio workman. It follows, therefore, that the court below erred in overruling the motion for judgment.

The question of the dependency of plaintiff upon Sam Ware was argued at great length. Many of the questions are foreclosed by the affirmance by the Supreme Court of the case of *Musselli*v. *Industrial Commission,*28 O. C. A., 97. If plaintiff can bring herself within the rules laid down in that case, the fact that Sam Ware had contracted a bigamous marriage would not bar her right to recovery.

The Industrial Commission offered evidence of Gabriel Rohn. He was asked whether he knew with whom Lena Ware was living. The question was one of a series of questions whereby the commission offered to prove that plaintiff was living with William Carroll as man and wife. The commission had already offered Carroll as a witness. Objections was made to the questions asked Rohn in regard to the conduct of plaintiff and Carroll. The objection was on the ground that it constituted an impeachment of defendant’s own witness, and was sustained by the court. The *12question was proper, and the mere fact that the answer might incidentally reflect upon a person who had previously been a witness did not render improper the evidence to be elicited thereby, if such evidence had a tendency to prove any fact relevant to the issue in the ease. *Hurley*v. *State,*46 O. S., 320, 322; I Greenleaf on Evidence, Section 442, 443b.

The court awarded judgment for a lump sum. The law is that in cases arising by way of appeal from the decision of the Industrial Commission, denying the right of the claimant to participate in the state insurance fund any award, must provide for periodical payments and not a lump sum. *Roma*v. *Industrial Commission,*97 O. S., 247. Had this been the sole error, we would have directed a modification of the judgment. In view of the other errors, however, the judgment will be reversed.

Jones, P. J. and Hamilton, J., concur.