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Statement of the Case.


Duties of county commissioners-As to plans, etc.-For road im

provements-Section 1166, Revised Statutes.

Section 1166, Revised Statutes, does not require the county com

missioners to cause plans, specifications and details to be made in all cases of road improvement.

(No. 11111-Decided October 9, 1909.)

ERROR to the Circuit Court of Athens county.

The plaintiff, Hibbard, as surveyor, brought suit against the defendants, Biddle, Wolf and Hill, as members of the board of commissioners of Athens county and as members of the board of turnpike directors of Athens county, and against Downey and Angel as partners, to enjoin the execution of a contract to be made by said commissioners and directors with said Downey and Angel for the improvement of a turnpike, and to enjoin the expenditure of money in pursuance of such contract. The substantial allegations of the petition were, that the plaintiff was the duly elected and qualified surveyor of Athens county; that the three first named defendants were its commissioners, and acting as the board of turnpike directors for the county, and that they had agreed with Downey and Angel for the repair of a road in said county by adding lime and sandstone to said road, and to drain the same in a workmanlike manner in consideration of prices agreed upon by them; that this was done without any plans, specifications, details, estimates of costs or form

Opinion of the Court.

of contract, and that the said defendants had not requested the plaintiff to prepare such plans, specifications, details, etc., and that they had refused to allow or approve any claim which he might make for services if he should prepare such plans, specifications and estimates. The circuit court sustained a demurrer to this petition and dismissed the petition, adjudging the costs of the suit against the plaintiff.

Messrs. Lereis & Sayre, for plaintiff in error.

Mr. Wade H. Ellis, attorney general; Mr. W. H. Miller; Mr. I. M. Foster, and Mr. Clarence D. Laylin, for defendants in error.

BY THE COURT. Counsel for the plaintiff rely upon Section 1166, Revised Statutes, as giving the right of action upon the facts alleged in their petition. The material provisions of that section are as follows: "The county surveyor shall perform all duties for such county as are now or may hereafter be authorized or declared by law to be done by any civil engineer or surveyor. He shall prepare all plans, specifications, details, estimates of cost, and submit forms of contracts, for the construction or repair of all bridges, culverts, roads, drains, ditches and other public improvements (except buildings) which may be constructed under the authority of any board within and for such county.

He shall make all surveys required by law to be made, and perform all necessary services to be performed by a surveyor or civil engineer in connection with the



Opinion of the Court.

construction, repair or opening of all county roads, turnpikes, and ditches constructed under the authority of the board of county commissioners, and shall perform such other duties as said board may from time to time require.”

Manifestly the section contains no express provision that plans, specifications, details, estimates of costs shall be prepared by any one for all highway repairs. The proposition of counsel for the plaintiff is, that that requirement is implied in the general provisions of the section when considered in connection with numerous other provisions of the statute requiring them to be made for buildings and other improvements. The better view seems to be, that the omission of the requirement in this case indicates that the subject is to be left to the large discretion which the statutes generally confer upon the board of county.commissioners, and that is especially true in view of the obvious fact that in many repairs of roads, such plans, specifications, et cetera, would not be necessary or even practicable. Whether in a given case they are practicable and necessary, is left to the discretion of the county commissioners, the effect of the amended section in that regard being, that if they deem them necessary they shall be prepared by the county surveyor.

Judgment affirmed.

Crew, C. J., SUMMERS, SPEAR, Davis, SHAUCK and PRICE, JJ., concur.




Suit by administratrix of deceasedFor latter's wrongful death,

Deceased left no heirs but widow and her mother-Widow dies pending suit for damagesProceedings revived by administrator de bonis nonAccording to Section 6135, Revised Statutes -There remained no statutory beneficiaryNot error to dismiss suit.

On the 12th day of April, 1890, Mary Doyle as administratrix of the

estate of John H. Doyle, deceased, brought suit against the railroad company to recover damages for wrongfully and negligently causing his death, and alleged that he left no children, but that she, Mary Doyle, became his widow, and was his only heir and next of kin. The cause was tried in the court of common pleas and the administratrix recovered a judgment. On proceedings in error, the circuit court reversed said judgment and remanded the case to the court of common pleas for further proceedings. Thereupon the administratrix prosecuted error in this court to reverse the judgment of the circuit court, and while the proceeding was pending in this court, said widow, administratrix, died. An administrator de bonis non' was appointed and the proceedings were revived in his favor. On hearing, this court affirmed the judgment of the circuit court, and the cause was remanded to the court of common pleas for further proceedings, where the railroad company filed a supple

mental answer and to which the plaintiff made reply. These pleadings show that the deceased widow, at the death of her

husband, John H. Doyle, was his sole heir and next of kin; that he left no children, or parents or their next of kin, but that he had some collateral heirs, and that the mother of said widow

survived her. TIeld:That, according to the provisions of Section 6135, Revised

Statutes, after the death of said widow, there remained no statutory beneficiary for whose behoof the action could be maintained, and it was not error to dismiss the same for that reason.

(No. 11567—Decided Noveniber 30, 1909.)

ERROR to the Circuit Court of Franklin county,

Statement of the Case.

On or about the 8th day of November, 1888, John H. Doyle, an engineer in the employ of The Baltimore & Ohio Railroad Company, was killed in a collision. His widow, Mary Doyle, was appointed administratrix of his estate and she brought suit against said company to recover damages for wrongfully causing the death of Doyle. His sole heir was the widow, Mary Doyle, they having no children.

The case was tried in the court of common pleas and the administratrix recovered. The railroad company prosecuted error to the circuit court, and that court reversed the judgment of the court of common pleas on the ground that the verdict was not sustained by, but was manifestly against the weight of the evidence; the court holding that the negligence which caused the death of Doyle was that of a telegraph operator who was a fellowservant of Doyle.

To this judgment of reversal, the administratrix prosecuted error in this court, to obtain reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas.

The petition in error was filed in this court on the 6th day of April, 1896, and while the case was pending here, Mary Doyle, widow and administratrix, died, and on motion of counsel, this court entered an order of revivor of the action in favor of James M. Ottinger, as administrator de bonis non of John H. Doyle, deceased. This order of revivor seems to have been formally made, but without contest, on June 22, 1897.

Thereafter the cause was heard in this court on the petition in error, and the judgment of the cir

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