Cuyahoga County Circuit. ERROR. W. H. Boyd and E. J. Hart, for plaintiff in error. N. D. Baker, City Solicitor, for defendant in error. HENRY, J. The plaintiff seeks to enjoin the defendant's alleged unlawful interference with his hauling in the innocuous carcasses of animals, which, though not fit for food, are his property, from points within the city, through the public streets, to his rendering works without the city. Judgment was rendered against him below on demurrer to his petition. California Reduction Co. v. Sanitary Reduction Works, 199 U. S., 306 (26 Sup. Ct. 100). In the exercise of the police power, municipal corporations are authorized by Sec. 1536-761 R. S. (Sec 4470 G. C.) to regulate the disposal of dead animals. But inasmuch as dead animals are valuable for purposes other than food, and the right of private property therein clearly exists, the city's right to regulate the disposal thereof is limited to the reasonable necessities of the public health and welfare. The petition alleges that the interference complained of is unlawful and that the carcasses in question are not noxious. The demurrer should therefore have been overruled. Whether the petition is vulnerable to a motion to make definite and certain we do not decide, nor is it necessary to speculate what ordinance reulations, if any, on the subject may be valid. That issue can doubtless be raised by answer to the merits. Reversed and remanded. Marvin and Henry, JJ., concur. Garrity v. Farber. MASTER AND SERVANT. [Cuyahoga (8th) Circuit Court, December 16, 1907.] MAT GARRITY V. A. J. FARBER ET AL. Risk Assumed by Workman by Using Defective Materials to Construct Place to Work. When a workman had used defective materials in erecting a scaffold and was afterwards injured by its collapse, the fact that he had called the foreman's attention to the defective material and been assured by him that it was all right, does not obviate the workman's assumption of risk. ERROR. E. P. Strong and W. E. Gunn, for plaintiff in error. J. H. Sampliner and M. J. Farber, for defendant in error. HENRY, J. This was a personal injury damage case, wherein a verdict for the defendants below was directed on their motion made at the close of the plaintiff's evidence. Judgment having been rendered accordingly, the plaintiff below prosecutes this proceeding in error. The injury of which he complains was occasioned by the breaking of one of the supports under a low scaffold whereon he was standing. The scaffold consisted of planks laid upon said supports, and the supports consisted of two upright boards or planks connected at the top by a horizontal board or plank. Each support was made fast to one of the several posts in the building where the accident occurred, the upright part resting at the bottom on the floor on either side of the post. One of these upright boards broke because of being cross-grained and very dry. It does not appear that it was rotten in any other sense. Garrity was told by his foreman to use these supports in erecting the scaffold. When he came to do so the appearance of the supports led him to suspect that they were not strong enough for the purpose, and he complained to his foreman, who assured him that they were all right and had been used by Cuyahoga County Circuit. other workmen. Both Garrity and his foreman were carpenters of many years experience. Close inspection of the upright that broke would have disclosed its condition, and Garrity had the same opportunity to know its condition as his foreman, save that the latter perhaps knew that the boards had been in a dry place where the temperature was 70 degrees. Upon this state of facts we are asked to hold that the foreman's assurance obviated Garrity's assumption of the risk. The rule is, of course, that an employee must allege and prove either a promise to repair on which he relied, or else that he had no knowledge of the defect or danger complained of and would not, in the exercise of ordinary care, have discovered the same; and he is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care, would have knowledge. Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. 585.] On the facts of this case, Garrity's suspicions as to the weakness of the supports having been aroused, it became his duty as an experienced carpenter about to use the same, in constructing a scaffold whereon he was about to work, to scrutinize the same with care. No assurance short of a promise to repair on the part of his foreman, could, in such case, suffice to shift the risk from his shoulders to the shoulders of his employer. The judgment below is affirmed. Marvin and Henry, JJ., concur. Klein v. Amazon Lodge. BENEFICIAL ASSOCIATIONS. [Cuyahoga (8th) Circuit Court, December 16, 1907.] MOSES KLEIN V. AMAZON LODGE No. 567. Remedy of One Expelled from Beneficial Society. When one has been expelled from membership in a fraternal or beneficial organization, he must exhaust all remedies provided within the organization before appealing to the courts. Kerruish & Kerruish, for plaintiff in error. Strimple & Schrimshaw, for defendant in error. HENRY, J. This was an action for damages in which the plaintiff in error, who was plaintiff below, sought redress for alleged unwarrantable expulsion from the defendant fraternal order, of which he had been a member. The regulations of the order provide with great particularity the procedure in such cases. That procedure was so far pursued as that Klein, after due notice, was tried for offending against one of the rules of the order, and as a result of such trial his expulsion occurred. Subsequently he invoked a review of this action by an appellate tribunal within the order, but he failed to pursue his remedy in this behalf as far as the regulations permit and contemplate. Instead, he brought this action, alleging that the appellate procedure was not convenient nor definitely pointed out either by the officers of the order or by its regulations. An inspection of the regulations themselves shows that this claim was not warranted, and because he has failed to exhaust his remedy within the order, as provided by its regulations, his resort to the civil courts was premature. See Meyers v. Jenkin, 63 Ohio St., 101 [57 N. E. 1089]. The remark of the court in the hearing of the jury during the trial complained of by the plaintiff in error as prejudicial; alleged errors in the charge to the jury, and the alleged want of merit in the case made against Klein on the trial within the order, Cuyahoga County Circuit. are questions, as we view this record, of no moment inasmuch as, upon the conceded facts and documentary evidence, the judgment must necessarily have been rendered for the defendant below. The judgment below is affirmed. Marvin and Henry, JJ., concur. ASSESSMENTS. [Cuyahoga (8th) Circuit Court, December 24, 1907.] Winch, Marvin and Henry, JJ. T. H. JOHNSON V. GLENVILLE CITY. 1. Abutter not Estopped from Enjoining Collection of Assessment by Signing Petition for Improvement. A property owner is not estopped from enjoining the collection of an assessment illegally levied against his property, because he had signed a petition asking for the improvement to pay for which the assessment is levied. 2. Injunction Lies for Failure to Afford Abutter Opportunity to Build Sidewalk. A property owner must be given an opportunity to elect whether or not he will build a sidewalk in front of his premises, and may enjoin the collection of an assessment to pay for one built by the city when not given such opportunity. ERROR. Thomas H. Johnson and Ford, Snyder & Tilden, for plaintiff in error. N. D. Baker, City Solicitor, and. W. D. Wilkin, for defendant in error. HENRY, J. The injunction prayed for is allowed. The plaintiff was given no opportunity, before the construction of the sidewalk in front of his premises, to elect whether he or the city should perform the work. Section 2330a. Revised Statutes, the only statute purporting to authorize a different procedure, was not only unconstitutional, but was not attempted to be complied with. |