State ex rel. O'Neill v. Troy Sunshade Co.

• Decision Date: 06 February 1954
• Parties: , 58 O.O. 208 The STATE ex rel. O'NEILL, Attorney General, Appellee, v. The TROY SUNSHADE CO., Appellant.
• Court: Ohio Court of Appeals

Page 115

99 Ohio App. 115

131 N.E.2d 837, 58 O.O. 208

The STATE ex rel. O'NEILL, Attorney General, Appellee, v. The TROY SUNSHADE CO., Appellant.

Court of Appeals of Ohio, Miami County.

Feb. 6, 1954.

Syllabus by the Court.

1. Where an additional award is made by the Industrial Commission against an employer upon a finding that an injury suffered by an employee resulted from such employer's violation of a specific safety requirement, the Industrial Commission has the sole and exclusive right to determine whether the failure to comply with such requirement caused the injury of which the employee complains.

2. The question whether such requirement is specific is one of law and not of fact alone.

3. The trial court has jurisdiction to review the decision of the commission in respect to the imposition of the added award upon basic legal questions necessary to be determined by the commission before making such award.

4. If it is denied that there is a specific requirement, such issue may properly be determined on an appeal in an action instituted by the Attorney General to recover the additional award of the commission.

Dale D. Rapp, Columbus, for appellant.

C. William O'Neill, Atty. Gen., and Leonard J. Stern, Columbus, for appellee.

HORNBECK, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court for plaintiff against the defendant, in the sum of $1,854.11, with interest and costs.

The action was instituted for the recovery of an additional award made by the Industrial Commission against the defendant upon a finding that an injury suffered by an employee of the defendant resulted from the employer's violation of a specific safety requirement. The safety requirement which it is alleged was violated by the defendant is set forth in its entirety in bulletin 207, being sections 16 and 19 of the specific requirements promulgated by the Industrial Commission. The defendant answered by asserting three defenses, one of which was a general denial, another a denial of the jurisdiction of the commission to make the award and that it was made contrary to and in violation of the true and lawful meaning of the safety requirements, and, third, that there was no violation of any legal specific requirement.

Upon the issues drawn, the cause came on for hearing, evidence was offered by the plaintiff of the order of the Industrial Commission, and the settlement sheet was introduced showing the amount due plaintiff, which it was conceded made a prima facie case on behalf of the plaintiff. The defendant then offered the testimony of three witnesses. It was stipulated that other witnesses of the defendant were available but that their testimony was not offered because it would be cumulative. Practically all the testimony offered by the defendant was admitted without objection or exception. It tended to show that there was no violation of the requirements set out in the petition, that they were not specific requirements, that they were indefinite and susceptible of different meanings, and that the employee, in using the press with which he was injured, was negligent in that he failed to use it as directed and in the proper manner.

The trial judge, in a written decision, relied principally on State ex rel. Duffy, Attorney General, v. Alexander, d. b. a. Alex-Short Builders, Miami County Common Pleas Court, No. 33870, unreported, in which case the court passed on the requirement upon the issue of whether it was a specific requirement. In the instant case, the trial judge found 'that the decision of the commission as to whether or not the injury resulted from a violation of a specific safety requirement, is final.' The trial court, in its decision recites:

'The court finds that under Article II, Section 35 of the Constitution of Ohio, the Industrial Commission of Ohio has full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of an employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such commission, and that the determination and decision of said Industrial Commission of Ohio thereon shall be final, and that by reason thereof this court is without jurisdiction to inquire into the question of whether or not the injury suffered by John A. Ball was the result of the violation of a specific safety requirement.'

Under authority of Alatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484, the trial court had jurisdiction to review the decision of the commission in respect to the imposition of the added award upon basic legal questions necessary to be determined by the commission before making such award. As we read the Slatmeyer case and other pertinent opinions--Pittsburg Coal Co. v. Industrial Commission, 108 Ohio St. 185, 140 N.E. 684; Gatton v. Industrial Commission, 93 Ohio St. 203, 112...