Hay v. Norwalk Lodge, B.P.O.E.Hay v. Norwalk Lodge, B.P.O.E.
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 partiеs 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,
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, сrashed 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.
Upon this phase of the appeal we are required to determine whether the above allegations state a cause of
It is singular that no reported decision in Ohio, directly in point, has been brought or has come to our attention.
Gschwind, Admx.,
v.
Viers,
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 hаrm 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 prеmise 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.
Carmen
v.
Steubenville & Indiana Rd. Co.,
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.,
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 sidewalk over which the owner has control, imposes liability upon such owner for injury to a pedestrian with the attendant evidence rule of
res ipsa loquitur.
In a case where an object is suspended over а street or highway, and in the course of events must fall unless suspended by artificial means employed by the owner, such owner is absolutely bound to make it secure. But no such liability is imposed upon the owner of a growing tree. A branch of a growing tree is not kept from falling by artificial means employed by its owner, but it is kept intаct and firm by natural processes. It is only when injury or decay interferes with the natural processes that human intervention is required. Nor is the principle of
Rylands
v.
Fletcher,
L. R. 3 House of Lord’s
A number of cases on the subject are reviewed in the annotations found in 19 A. L. R., 1021, 49 A. L. R., 840, 72 A. L. R., 615, and 11 A. L. R. (2d), 626. A review of those decisions leads to the conclusion that in the absence of knowledge of a defective condition of a branch of a tree which in the course of natural events is likely to fall and injure a person in the highway, no liаbility attaches to the owner of the tree. On the other hand, where the owner has knowledge of the dangerous condition of the tree or its branches, it is his duty to exercise reasonable care to prevent the fall of the tree or its branches into the highway.
Two cases are cited, taking the position that there is no duty on the owner of premises abutting a rural highway to examine trees growing either on the premises or along the highway to determine whether, through natural processes of decay, such trees have become dangerous to users of the highway. It may be noted, in passing, that whether the tree is on the owner’s premises or on the untraveled portion of the right of way is immaterial in Ohio since the owner of the fee retains the exclusive right to the trees growing thereon for all purposes not incompatible with the right of way.
Phifer
v.
Cox,
The two cases relieving the owner of premises abutting a rural highway from liability are
Zacharias
v.
Nesbitt
(1921),
In the Zacharias case the tree, which was obviously old and decayed, was within the limits of the highway, and a number of years prior to the accident the owner had received notice from the authorities to remove the tree from the highway limits. The court said the notice was merely a warning that if the owner desired to remove and appropriate the tree, he might do so, otherwise the authority would do it, and that the law did not compel the owner to do any affirmative act in respect to natural objects found in or upon the highway limits in order to protect travelers thereon.
The other case relating to a rural area is
Chambers
v.
Whelan, supra,
which involved an obviously decayed tree standing upon defendant’s property, which fell across a country road upon the plaintiff while driving thereon. The opinion is written by an eminent authority, Judge John J. Parker. The decision turns, however, upon the duty of the owner of a large tract of land to inspect. The court interpreted the allegations of the pеtition that the defendants knew, or in the exercise of reasonable care could have known, of the dead and decayed condition of the tree as an allegation of failure to inspect. It was held that the allegation was
The court stated that the case did not involve the liability of one who, with knowledge of the dangerous condition of a tree, maintains it on his property when it is liable to fall and injure persons upon a highway.
The opinion recognizes that even though a duty may be imposed upon public authorities to maintain the safety of a highway, an abutting property owner is not necessarily absolved from his duty with respect thereto. But in West Virginia a statute imposes upon the highway officials the duty of removing all dead timber standing within fifty feet of а highway and no like duty is imposed upon the owner. No such statute is found in Ohio. It may also be noted that the duty imposed upon a municipality by Section 3714, General Code, does not absolve the abutting property owner from his duty to the traveling public.
Herron
v.
City of Youngstown,
The Zacharias and Chambers cases are the only authorities, referred to in the annotátion in 11 A. L. R. (2d), 626, 633, holding that there is no liability on the part of the owner of premises abutting a rural highway. However, in Brandywine Hundred Realty Co. v. Cotillo (C. C. A. 3), 55 F. (2d), 231, the court in a case arising in Delaware held that the owner of a dead tree standing in a suburban forest was liable to an autoist injured by the falling of the tree.
It has been said that there is no common-law duty imposed upon the owner of trees abutting a highway.
An owner of property abutting a highway has the obligation to use reasonable care to keep his premises in such condition as not to endanger trаvelers in their lawful use of the highway. If he fails to do so and thereby renders the way unsafe for travel, he should be liable therefor. It is, therefore, concluded that, although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto to ascertain dеfects which may result in injury to a traveler on the highway, an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway. If the danger is apparent, which a person can see with his own eyes, and he fails to do so with the result that injury results to a traveler on the way, the owner is responsible because in the management of his property he has not acted as a reasonably prudent landowner would act.
According to the allegations of the petition, the tree
As to the lodge and the individual defendants as trustees thereof, the judgment is affirmed. As to the defendant Harry E. Sanders the judgment is reversed and the cause remanded for further proceedings.
Judgment accordingly.
Notes
Under the liberal rule in Ohio applicable to the construction of pleadings, the interpretation made in the Chambers case would not prevail, but in the case before us the allegation is that the defendant knew of the defective condition of the tree.