(146 N.E.) why the Court of Appeals decided the point | Jesse M. Simon and Arthur H. Fix, both of law involved on the first review. The of Cincinnati, for defendant in error. claim is made that if recourse is had to the opinion of the appellate court on the first review it can be discerned what has been decided. The opinion is no part of the record. It comes only to the attention of this court by the claim made by counsel for plaintiff in error in his argument. In this phase of the case we do not think it can be said that the law of the case is properly be fore us. PER CURIAM. The record discloses that the defendant in error was employed at the Strand Theatre in Cincinnati as an operator of moving picture machines; that the machines were operated by electric light of great intensity and brilliancy, throwing the most powerful ultra-violet light rays, at and through which Russell was compelled at all times to look, that during the latter part of the year 1918 he noticed that his eyesight, in both eyes, was becoming affected by such light; that after January 25, 1919, he left his occupation and received treatment for his failing vision, and on or about the 28th of January, 1920, lost the sight of both eyes, the same being diagnosed as optic disease and a distraction of the optic nerve; atrophy, which it is claimed is an incurable and that the same was due and caused by the prolonged action of ultra-violet light or rays coming from a silver-tipped carbon point used in moving picture machines, which he was required to look at almost continuously. Outside of what has been said, we do not think that the important points under consideration should be decided by this court without full and complete argument upon the questions. The only reference made by counsel for plaintiff in error was a line in his brief to the effect that the decision of the first appellate court on the first review should have been "followed, res adjudicata." The principles of res adjudicata do not apply. No cases were cited, touching the law of the case, by counsel for plaintiff in error, nor was the point alluded to in the brief of counsel for the city. And again, in view of the fact that the last judgment of the appellate court was affirmed, there was no necessity for this court to pass upon so important a procedural question as that contained in the first three propositions of the syllabus. MATTHIAS and DAY, JJ., concur in dis-ing out of his employment, within the mean senting opinion. INDUSTRIAL COMMISSION OF OHIO v. (Supreme Court of Ohio. Dec. 23, 1924.) (Syllabus by Editorial Staff.) Master and servant 373-Motion picture operator's loss of sight held not compensable. Action of ultra-violet rays which injured optic nerve of motion picture operator and resulted in optic atrophy, not being result of traumatic injury or accident, held not compensable, under Gen. Code, § 1465-68. Allen and Conn, JJ., dissenting. mission his claim was rejected on the ground Upon application to the Industrial Comthat his disability was not the result of an injury sustained in the course of or aris ing of the Compensation Act. An appeal was prosecuted to the court of common pleas of Hamilton county, and to the petition filed therein a demurrer was interposed, which was sustained by the court of common pleas. Error was prosecuted to the Court of Appeals and resulted in a reversal by that court of the judgment of the court of common pleas. The question presented for determination is, therefore, whether or not the petition sets up sufficient allegations upon which to base a claim for compensation, under the provisions of the Workmen's Compensation Law of Ohio (Gen. Code, §§ 1465-37 to 1465108). This injury occurred before the enactment by the Legislature of the statute providing Error to Court of Appeals, Hamilton for compensation for occupational diseases County. Proceeding under the Workmen's Compensation Act by Charles M. Russell, compensation claimant, opposed by the Strand Theatre. The Industrial Commission denied award, and on appeal to common pleas court, order thereof was affirmed. Judgment, on error to Court of Appeals being reversed, the Industrial Commission brings error. Reversed. [By Editorial Staff.] Charles S. Bell, Pros. Atty., of Cincinnati, and Louis Schneider, of Ironton, for plaintiffs in error. contracted in the course of employment, even if under the facts of this case the same came within the purview thereof. It has been held by this court in the case of Industrial Commission v. Cross, 104 Ohio St. 561, 136 N. E. 283, that diseases contracted in the course of employment not occasioned by, or the result of, physical injury are not compensable as injuries under section 1465-68, General Code. The term "accident" has heretofore been defined in this state in Industrial Commission v. Roth, 98 Ohio St. 34, at page 40, 120 N. E. 172, 174 (6 A. L. R. 1463), as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-20 "An accident is some happening that occurs by chance, unexpectedly, and not in the usual course of events. It is something that might possibly be prevented by the exercise of due care and caution." course of his employment by the alleged negligence of the owner of the premises, applied for and accepted compensation under the Workmen's Compensation Act and later brought a personal injury action against the owner of the premises. The owner of the premises pleaded as In Renkel v. Industrial Commission, 109 a complete defense the compliance with the Ohio St. 152, 141 N. E. 834, it was held: Compensation Act by itself and the independ"Diseases contracted in the course of employ-ent contractor and the acceptance of compenment, and not occasioned by or the result of a physical injury, are not compensable as 'injuries' under section 1465-68, General Code." sation by the employé. Held, that under section 1465-61 (3), General Code, the owner of the premises is not the employer of the said employé where the independent contractor has paid into the state insurance fund the amount of premium determined and fixed by the Industrial Commission of Ohio, for his employment or occupation. Error to Court of Appeals, Cuyahoga County. A majority of the court are of opinion that, construing the petition most favorably to the pleader, there are not facts sufficiently set forth therein to bring the case within the terms of the Compensation Act; that no "injury," as contained in the statute and construed by this court, is shown to have taken place. There seems not to have been Action by Joseph Shachovsky against the an accidental occupational disease, and it Trumbull Cliffs Furnace Company. Judg. is conceded that there was no traumatic in- ment for plaintiff was affirmed by the Court jury, or any accident, which caused this un- of Appeals, and defendant brings error. Affortunate condition, but rather the prolong-firmed.-[By Editorial Staff.] ed action of ultra-violet rays coming from a silver-tipped carbon point, which by slow, but sure, process injured the optic nerve and resulted in optic atrophy. In the state of the law at the time of the commission of these acts, sufficient was not contained within the statutory enactment to enable the commission to grant this relief, though we reach this determination most reluctantly. The conclusion, therefore, of the majority is that the commission and the common pleas court were right in their decision, and that the Court of Appeals erred in reversing the same. The judgment of the Court of Appeals is, therefore, reversed. Judgment reversed. This is an error proceeding asking the reversal of a judgment rendered in favor of Shachovsky by the court of common pleas of Cuyahoga county, which was later affirmed by the Court of Appeals of the same county. The action was for personal injury arising out of the following facts: Upon March 14, 1921, Shachovsky was an employé of the Truscon Steel Company, and was working on the premises of the Trumbull Cliffs Furnace Company in Warren, Ohio. The Trumbull Cliffs Furnace Company was at the time constructing a power house upon its own premises in Warren, and had engaged the Truscon Steel Company by contract to install certain window sash frames in said plant. While working for his employer, the Truscon Steel Company, Schachovsky was injured by an overhead traveling crane, which was electrically operated and at the time of the accident in question was run by the employés of the Trumbull Cliffs Furnace Company. Shachovsky brought an action for personal injury against the TrumTRUMBULL CLIFFS FURNACE CO. v. bull Cliffs Furnace Company. At the trial, MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, and DAY, JJ., concur. ALLEN and CONN, JJ., dissent. SHACHOVSKY. (No. 18219.) (Supreme Court of Ohio. Dec. 23, 1924.) (Syllabus by the Court.) verdict was rendered in favor of Shachovsky, and judgment pronounced thereon. During the trial of the case below defendant obtained leave to file an amended answer, Master and servant 354-Owner of prem-setting up the following defenses: (1) A ises held not employer of employé of inde- general denial and contributory negligence. pendent contractor complying with Compen- (2) Compliance of both plaintiff in error and sation Act. the employer of defendant in error with the An independent contractor was performing Compensation Act, contributory negligence, work for a corporation upon the premises of assumption of risk and fellow-servant rule. the said corporation by virtue of a contract be- (3) Compliance of both plaintiff in error and tween such independent contractor and such corporation, owner of the said premises. Both the employer of defendant in error with the the owner of the premises and the independent act, contractual relationship of these parties, contractor had complied with the Workmen's e. g., that of owner of the premises (or prinCompensation Act. An employé of the inde- cipal contractor) and independent contractor; pendent contractor, having been injured in the and application for and acceptance of com (146 N.E.) pensation by the defendant in error as a bar | Trumbull Cliffs Furnace Company is the emto the action. ployer of Shachovsky and hence cannot be sued as a stranger. The second and third of these defenses were stricken out by the trial court upon motion of the plaintiff. The Workmen's Compensation Act (section 1465-60, General Code) defines the term “emThe case comes into this court upon mo- ployer" as "every person, firm, and private tion to certify the record. J. R. Kistner, of Cleveland, for plaintiff in error. J. H. C. Lyon and Clinton J. Wall, both of Youngstown, for defendant in error. ALLEN, J. The jury found for the plaintiff upon the allegations of the first defense. Since the defendant's second and third defenses set up compliance upon the part of the owner of the premises and the subcontractor with the Workmen's Compensation Act (Gen. Code, §§ 1465-37 to 1465108) and acceptance of compensation by the plaintiff as a complete defense to the action, raising no question of payment pro tanto, one legal problem only arises herein. This is a question of the interpretation of section 1465-61 (3), General Code, which reads as follows: "Every person in the service of any independent contractor or subcontractor who has failed to pay into the state insurance fund the amount of premium determined and fixed by the Industrial Commission of Ohio for his employment or occupation, or to elect to pay compensation direct to his injured, and to the dependents of his killed employees, as provided in section 1465-69, General Code, shall be considered as the employé of the person who has entered into a contract, whether written or verbal, with such independent contractor unless such employés or their legal representatives or beneficiaries elect, after injury or death, to regard such independent contractor as the employer." The plaintiff in error argues that it is inequitable to permit an injured employé of an independent contractor to accept compensation under the Workmen's Compensation Act and then sue the owner of the premises for the injury sustained, when both owner of the premises and the independent contractor have complied with the Compensation Act relative to paying premiums into the state fund, or have obtained permission to carry on their own insurance. It urges that when the owner of the premises has contractually required his independent contractor to pay into the state insurance fund the premiums necessary to protect its employés under the Compensation Law, an injured employé of the independent contractor cannot accept the benefits of this compliance and then sue the owner as a stranger. corporation * that has in service five or more workmen or operatives regularly in the same business contract of hire." under any Within this definition, for the purposes of this case, an employer is one who engages the services of a workman and agrees to pay him therefor. To establish the relationship of master and servant there must be a contract of service. It is conceded that no such relationship exists here unless it is created by the statute above quoted, and plaintiff in error insists that the statute accomplishes that very result. However the language of the statute (section 1465-61) is so plain that we have difficulty in following plaintiff's contention. It provides that the injured employé shall be considered the employé of the general contractor only in the case where the subcontractor or independent contractor, who actually employs the injured workman, has not complied with the law and has neither paid the premiums nor elected to give compensation direct. There is an exception to this provision, which is that if the injured employé elects to regard the independent contractor as his employer, even if the independent contractor has not complied with the law, in such case the general contractor shall not be deemed the employer of the injured employé. This exception can hardly aid the plaintiff in error. Instead of extending the statutory relationship of employment as created in the Code, it still further limits it. Plaintiff in error asks the court to read the statute above given as follows: In other words, he attaches no meaning whatever to the clause "who has failed to pay into the state insurance fund the amount of the premium * * or to elect to pay the compensation direct." If the Legislature of Ohio had intended to enact a statute accomplishing the result claimed by plaintiff in error, it would have been very easy to do so. However, we have to take the statute as written. In this case the record shows that the Truscon Steel Company, the independent contractor, at the Plaintiff in error does not contest the fact time of the accident had complied with the that, if the Trumbull Cliffs Furnace Com- Compensation Act, and hence the provision pany is not the employer of Shachovsky, it that every person in the service of any indecan be sued by Shachovsky under the facts pendent contractor or subcontractor shall be herein; it claims, however, that under the considered as an employé of the owner or provisions of the Code above-quoted, the principal contractor, if his own employer has failed to pay into the state insurance fund the required amount of premium, or has failed to elect to pay compensation direct, does not here apply. Inasmuch as the subcontractor had complied with the compensation statute, the owner was not the employer of Shachovsky at the time of the accident; it had no contractual relation with Shachovsky; it was for the purpose of this suit nothing more than a third person. This fact is a complete answer to the proposition of plaintiff in error that it is inequitable to allow the workman to have two recoveries, one under the Compensation Act and one under this suit. As such third person the owner of the premises could be sued for the negligence of his own employés, which caused the accident, since the compensation provided by the Workmen's Compensation Law is in the nature of an occupational insurance, and, like general insurance, cannot be deducted and treated as an offset for claims for damages for wrongful injury or death. Newark Paving Co. v. Klotz, 85 N. J. Law, 432, 91 A. 91; Mercer v. Ott, 78 W. Va. 629, 89 S. E. 952; Merrill v. Marietta Torpedo Co., 79 W. Va. 669, 92 S. E. 112, L. R. A. 1917F, 1043; Shearman & Redfield, Negligence (6th Ed.) § 765. Since the provisions of section 1465-61 (3) are plain and unambiguous, as above set forth, the judgment of the Court of Appeals is affirmed. Judgment affirmed. MARSHALL, C. J., and JONES, MATTHIAS, DAY, and CONN, JJ., concur. In re GURNEA'S ESTATE. (No. 18115.) (Supreme Court of Ohio. Dec. 23, 1924.) (Syllabus by the Court.) 1. Courts 240-Settlement of executor's account is not chancery case. The settlement in the probate court of the account of an executor does not constitute a chancery case. 2. Courts 240-Appeal from order settling executor's account not chancery case; judgment of common pleas thereon not appealable to court of appeals. The appeal to the court of common pleas of the settlement of the account of an executor in the probate court is purely statutory and does not constitute a chancery case; hence the judgment of the court of common pleas upon such an appeal from the probate court is not appealable to the Court of Appeals under section 6, article IV, of the Constitution of Ohio. Error to Court of Appeals, Clark County. In the matter of the estate of U. H. Gurnea, deceased. Action by George H. Eberle, executor, against Sarah Helen Gurnea. From decision of probate court settling executor's account, defendant appealed to the court of common pleas, from judgment of which the executor appealed to the court of appeals, which dismissed appeal, and the executor brings error. Affirmed.-[By Editorial Staff]. His As revealed by the record and briefs the U. H. facts in this case are as follows: Gurnea died testate on June 22, 1916. widow, Sarah Helen Gurnea, is the exceptor, and defends in this court against the executor, George H. Eberle. On July 26, 1918, the executor filed his third first account in the probate court of Clark county. Exceptions thereto were taken by Sarah Helen Gurnea and referred by the probate court to a special master commissioner for hearing and find- ́ ing. The decision of the special master commissioner was affirmed by the probate court. From the decision of the probate court an appeal was taken to the court of common pleas of Clark county by the exceptor, Sarah H. Gurnea. The appeal was submitted in the court of common pleas on the account, the exceptions thereto, the records, papers, exhibits, and testimony, oral and written, and arguments of counsel. Whereupon the court made, among other findings and orders, not herein pertinent, the following: "(1) That the executor and as surviving partner of U. H. Gurnea, deceased, had the legal right to conduct the Lion Hardware Company business as shown in said account, and that in so conducting it, Mr. Eberle, as surviving partner, had a right to sell the assets of the partnership at retail private sale, and as an incident to the conduct of such business he had the power to replenish the stock, as he did, as the nature of the business might require so as to preserve its value as a going concern. "(2) That the branch store at Lagonda was property regarded as partnership property between George H. Eberle and U. H. Gurnea prior to his death, June 26, 1916. "(3) That the Glen Echo Farm was conducted as partnership property by said Eberle and Gurnea prior to the latter's death. "(8) That while it would have been better had the surviving partner and executor taken receipts for the expenditures made by him, yet in the absence of such receipts he may show such expenditures by properly kept books or by checks. "(9) That the Master was right in disallowing the claim of Eberle for wages in the settlement of the partnership affairs, and the claim for wages is disallowed. "It is further found, by this court that, in consequence of the erroneous character of the executor's said account filed July 26, 1918, the executor should be and he is hereby ordered to file in this court, within ten days from the date of this entry, an amended First Account conforming to the law relating to accounts for set (146 N.E.) tlement by administrators and executors and including items and sums therein as found herein aforesaid and also excluding therefrom all items and sums as likewise found and ordered disallowed herein aforesaid. And the said Amended Account is to include any indebtedness of the said George H. Eberle, however arising, to said estate at said U. H. Gurnea's death and to include all collections on notes and accounts and all receipts of cash and other assets prior to the filing of said account belonging to the estate of U. S. Gurnea, deceased, and likewise to include all collections on notes and accounts and all cash receipts on sales at auction or at private sales of Glen Echo Farm, and also Lion Hardware Company partnership, received prior to the filing of said account, and showing how, from whom, and when received, now held, and how now invested, and with whom invested by the executor. "Sarah Helen Gurnea, by her counsel, excepts to the finding and order number one aforesaid, and to each and every part thereof; and she also excepts to the findings and orders aforesaid numbered four, eight and ten. "To the twelfth, thirteenth, fourteenth, fifteenth and sixteenth paragraphs and finding hereof, the defendant, George H. Eberle, executor, by his counsel, excepts." The executor later appealed from the judgment of the court of common pleas to the Court of Appeals; whereupon the attorneys for Sarah Helen Gurnea filed a motion to dis miss the appeal upon several grounds, only one of which is important to the decision herein, namely: "That this court [Court of Appeals] has no appellate jurisdiction to try and decide the case, 'it not being a chancery case.'" The Court of Appeals heard the motion of Mrs. Gurnea and sustained the same and ordered the appeal dismissed. The case comes into this court upon petition in error filed as a matter of right, a constitutional question being involved. Zimmerman, Zimmerman & Zimmerman and Martin & Corry, all of Springfield, for plaintiff in error. Keifer & Keifer, of Springfield, opposed. ALLEN, J. The legal question involved in this case is whether the settling of the account of an executor in the probate court, which is appealed to the court of common pleas, is, after judgment thereon in the court of common pleas, in turn appealable to the Court of Appeals under the provision of section 6, article IV, of the Constitution of Ohio. The pertinent portion of this provision reads as follows: "The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases. This question involves two subquestions: (1) Does the settling of an account of an executor constitute a chancery case? (2) If so, when such settlement is appealed to the court of common pleas from the probate court, is the judgment of the court of common pleas again appealable to the Court of Appeals? [1] We shall consider these questions in their order. Throughout the course of this opinion the plaintiff in error will be called the executor. The executor claims that within the rule laid down in the case of Wagner v. Armstrong, 93 Ohio St. 443, 113 N. E. 397, the matter of an accounting by an executor or administrator does constitute a chancery The rule in the Wagner Case is as case. follows: "A chancery case is one in which, according to the usages and practices in courts of chancery prior to and at the time of the adoption of the Code of Civil Procedure, remedies were awarded in accordance with the principles of equity and not in accordance with rules of law. And the proper definition of the term in our new Constitution cannot be regarded as affected by the provisions of statutes relating to appeals nor by the introduction bodily of equitable remedies into our statutes." The executor also urges that the account ing involves a settlement of partnership affairs and an accounting for partnership assets, and claims that by virtue of this fact the proceedings herein constitute a chancery case. We cannot agree that the fact that the accounting involves a settlement of partnership affairs affects the decision of this question. It is true that the adjustment of partnership accounts between two living partners is a branch of equity jurisdiction. But when one of the partners dies the partnership is ipso facto terminated, in absence of express agreement to the contrary. The personal property of the deceased partner passes to his personal representative, and his real property vests in the heirs at law. Since the partnership is dissolved the settlement of the estate of the deceased person is purely a probate and not, except incidentally, a partnership matter and necessarily the settlement of the account of the executor of the deceased person is a probate matter. This is so provided by statute, and justified by sound logic. The mere fact that the executor happens to have been one of the partners in a partnership now terminated does not affect the problem. If the settlement of a probate account does not in and of itself constitute a chancery case the Court of Appeals does not have jurisdiction herein merely because of the fact that affairs of a former partnership are incidentally involved. The principal question therefore is whether the matter of an accounting by an executor or administrator was within the juris |