1921.]

Stone v. Columbus.

power to hear and determine certain causes, prescribing the force and effect of their judgments or orders, and authorizing or directing the execution of enforcement thereof, shall be held to extend to the municipal court, unless inconsistent with the jurisdiction conferred upon said court by this act, or clearly unapplicable.

From an examination of these sections it is apparent that all jurisdiction which was formerly conferred upon mayor's courts. justices' of the peace courts or police courts was combined and conferred upon the municipal court, subject to the other and general provisions of the General Code. Section 1558-60, G. C., provides that:

"In all criminal cases and proceedings the practice and procedure and mode of bringing and conducting prosecutions for offenses and the power of the court in relation thereto, shall be the same as those which are now, or may hereafter be, conferred upon police courts in municipalities."

And Section 1558-75, G. C., provides that:

"Proceedings in error may be prosecuted to the court of common pleas of Franklin county from a judgment or final order of the municipal court in the same manner and under the same conditions, including the proceedings for stay of execu tion, as provided by law for proceedings in error from the court of common pleas to the court of appeals." etc.

It is obvious that Section 1558-75 was not intended to nor does it modify the procedure in criminal cases as stated in Section 1558-60 otherwise there was no reason for inserting this section in the municipal code. It logically follows that Section 1558-75 applies to civil cases only, where error may be prosecuted from the municipal court to the common pleas court as provided for proceedings in error from the common pleas court to the court of appeals. Section 4551, G. C., was in effect at that time, and provided the mode of procedure in certain criminal cases in error proceedings from the lower courts to the common pleas court. Thois procedure was not modified by the municipal code, but it provided that the procedure shall be the same as those which are now or may hereafter be conferred

upon police courts in municipalities. This mode of procedure was provided in Section 4551 and nothing in the municipal code. modifies this provision of the statute, which requires that petitions in error in cases of this character can only be filed when leave of court is granted.

A similar question to the one at bar was passed upon by our supreme court in the case of Canfield v. Brogst, 71 0. S., 42, reviewing the case found in 3 C. C. (N. S.), 575; 14 O. C. D., 555. The supreme court in commenting on Section 13751, G. C., in Canfield v. Brobst, 71 O. S., pp. 46-47, says:

"No doubt such case may be reviewed in the common pleas court, but the provision does not pretend to modify Section 1752 (4551, G. C.), which prohibits the filing of a petition in error in court to review a conviction for violation of an ordinance except on leave of court or a judge thereof.'

The court is, therefore, of the opinion that leave of the common pleas court or a judge thereof must first be obtained, when error is prosecuted from the municipal court to this court under a criminal conviction for the violation of a city ordinance.

The motion of the defendant in error is sustained, and the petition in error is ordered stricken from the files for the reason that leave of court was not obtained when it was filed in this court, and mandate is ordered sent to the municipal court in accordance with this decision.

APPLICATION OF THE PHRASES "WILLFUL ACT" AND
"LAWFUL REQUIREMENT."

Common Pleas Court of Hamilton County.

GEORGE KUHN V. THE CINCINNATI TRACTION COMPANY.

Decided, May 16, 1921.

Workman Injured by Fall of an Elevator-Elects to Sue his Employer Directly-Pleading-Conflict Between the Patten and the McLan han Cases-Designation of Place of Accident as "Shop" or "Factory."

1. While the statutory definition of a "willful act," making it an act done knowingly and purposely and with the direct object of injuring another," renders it highly improbable that any Ohio em. ployer will ever be held liable for such an act by an employee, a court will not assume to determine from a mere inspection or his pleading what facts a plaintiff may be able to establish when his case comes on for hearing on the merits, and hence an allegation that his injuries were the result of a "willful act" on the part of the defendant will not be stricken from the perition. 2. A violation of any of the provisions of Section 1027 is a violation of a "lawful requirement" within the meaning of Section 1465-76, G. C..

H. Kenneth Rogers, for the motion.
Roettinger & Street, contra.

DIXON, J.

Heard on motion to strike from the amended petition and to make the same definite and certain.

This action is brought by the plaintiff to recover compensation from the defendant for injuries plaintiff claims to have received while employed by defendant.

It is stated in the amended petition and is not disputed, that the defendant regularly employed five or more workmen, and has been authorized by the Industrial Commission of Ohio, as provided by Section 22 of the Workmen's Compensation Act, to

compensate its employees directly for injuries received by them in the course of employment.

Plaintiff in this case has waived his right to have his claim for compensation adjusted in conformity to the provisions of the act, and has elected to sue the defendant directly, as provided by Section 1465-76 of the said act.

It is consequently clear that the defendant is not liable in this action unless the plaintiff's injuries arose from the willful act of the defendant, or some of the defendant's officers or agents, or from the failure of the defendant, or some of its officers or agents, to comply with some lawful requirement for the protection of the lives and safety of its employees.

Plaintiff was injured by the falling of an elevator used by defendant to elevate coal at its east end power house, plaintiff at the time being on the elevator engaged in the work of lifting a small car of coal by means of said elevator from one floor to another floor or platform about forty feet above. Plaintiff claims that said elevator and its equipment has become worn and weakened by constant and excessive use and was not in good condition, and that an examination by the defendant would have disclosed such condition and the general unsuitability of the elevator for the work it was required to do.

Plaintiff's amended petition contains the following specified averment, to-wit:

"Plaintiff states further, that the injuries so suffered by him arose from the willful act of the defendant in failing to comply with the laws of Ohio, 104 Ohio Laws, at page 194, in that it failed to provide the protection and safety due plaintiff under said laws, in this, to-wit: that it failed to provide a suitable safety brake, and that it failed to provide a socket of sufficient strength to hold the elevator cable to the cab; and that said elevator was defectively constructed, in this to-wit, that the guides or tracks thereof were made of wood and were not of sufficient strength to permit the safety devices to operate so as to prevent the car from falling when the accident hereinbefore complained of occurred; and plaintiff says further, that by long and excessive use of said elevator the same had become weakened and of not sufficient strength to perform the work required of it in elevating coal as aforesaid,"

This allegation together with cthers, defendant seeks to have stricken from the amended petition. Defendant attacks this averment because it claims it is irrelevant and immaterial for the reason that the failure of the defendant to do the specific things set forth in this paragraph of the amended petition neither charge the defendant with doing a "willful act," nor withiviolating any "lawful requirement," within the meaning of Sec tion 1465-76, General Code.

With respect to the first contention concerning this averment, counsel for defendant is undoubtedly correct, when we bear in mind that the Legislature has defined the term "willful act,' as used in the above section, as "an act done knowingly and purposely with the direct object of injuring another." We can not ignore this definition, even though its acceptance means that the probability of any Ohio employer ever being held liable under this statute for a "willful act" is exceedingly remote. Under this definition of the term "willful act," as we analyze it, there must be an intentional trespass by the employer against the person of the employee, under circumstances which would fairly import criminal as well as civil liability. To do an act purposely means to do it intentionally, not accidentally or by chance. It imports an act of the will, intention, a design to do a particular thing or accomplish a specific result. Hence, before the defendant could be held liable under Section 1465-76 for a "willful act" the plaintiff must prove by a preponderance of the evidence that the defendant, or some officer or agent of the defendant, knowingly and purposely permitted the elevator in question to become and remain unsafe and unsuitable, and this with the direct object in view of injuring plaintiff or some other person.

Even conceding that the purpose for which the act is done may be gathered or adduced from the circumstances under which it is done, which is ultimately a question for the jury, we are nevertheless of the opinion that only in a very exceptional and highly unusual case, could all the essential elements of the above definition be shown. We have no right, however, to assume to determine from a mere inspection of his pleading,