Conrad v. Youghiogheny & Ohio Coal Co.

Decision Date17 April 1923
Docket Number17591
Citation140 N.E. 482,107 Ohio St. 387
PartiesConrad, Admx., v. The Youghiogheny & Ohio Coal Co.
CourtOhio Supreme Court

Workmen's compensation - Benefits limited to injuries to employes in employment - Action against employer after award denied by industrial commission - Estoppel by award or acceptance of compensation - Right to sue or apply for award - Section 1465-76, General Code - Selection of one remedy waives other.

1. The Ohio Workmen's Compensation Act does not apply to employes who may be injured after the termination of their daily employment, nor when, at the time of the injury, the relationship of employer and employe has ceased to subsist. ( Industrial Commission v. Weigandt, 102 Ohio St. 1, 130 N. E., 38, followed; Zilch v Bomgardner, 91 Ohio St. 205, 110 N. E., 459 distinguished.)

2. A legal representative of a killed employe can bring an action for damages as at common law against the employer, although such representative has theretofore made application to the Industrial Commission for an award under the act, if the sole ground of rejection by the Commission is that at the time of injury the deceased was not in the employ of the defendant or killed in the course of employment.

3. In any case, if the finding of the Commission is in favor of the applicant, or if the latter accepts compensation under the act, the applicant would be estopped from instituting any suit for damages resulting from the injury.

4. The options given to an employe or his legal representative by Section 1465-76, General Code, are confined to employes injured in the course of employment, and comprehend only those cases where the injury has arisen from the wilful act of the employer or from his failure to observe a lawful requirement. In such cases the employe or his representative may exercise his option either to institute proceedings under the act for damages or to make application for an award. But the selection of one of these remedies is a waiver of the right to pursue the other.

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The administratix of Henry Conrad, deceased filed her amended petition in the common pleas court, which contained allegations of negligence based upon the violation of duties under the principles of the common law. The injury was alleged to have been sustained by the deceased while riding on one of the defendant's cars to his home "after the termination of his day's employment, and while not in the course of his employment."

The defendant's answer contained two defenses. In its second defense it alleged that the defendant had fully complied with all of the terms of the Workmen's Compensation Act; that the plaintiff had theretofore filed with the Industrial Commission of Ohio her application for an adjustment of claim on account of the death of decedent; that such application was then pending on appeal in the court of common pleas; that in filing the application plaintiff had made her election under the provisions of the Workmen's Compensation Act and was estopped from asserting her action for damages.

To this defense plaintiff replied that at the time of the injury to and death of the decedent, Conrad, "he was not in the course or scope of his employment, nor in the employ of defendant," that his day's work had terminated, and that the Industrial Commission refused to make an award wholly upon the ground that at the time Henry Conrad met his death he was not engaged as an employe of the company. The reply further averred that plaintiff had appealed from the decision of the Industrial Commission, but later dismissed that appeal.

At this stage of the case the defendant moved for judgment on the pleadings. This motion was sustained by the common pleas court, and judgment rendered in favor of the defendant. That judgment was affirmed by the Court of Appeals; whereupon plaintiff in error instituted proceedings in this court to reverse it.

Mr. John A. Cline, for plaintiff in error.

Mr. George Cooke and Messrs. Squire, Sanders & Dempsey, for defendant in error.

JONES J. The lower courts held the defendant coal company immune from suit, because the legal representative of the deceased had theretofore applied to the Commission for compensation, and, under the provisions of Section 1465-76, General Code, had thereby waived her option to sue for damages.

The trial court in so holding relied upon Zilch, a Minor, by etc., v. Bomgardner, 91 Ohio St. 205, 110 N. E., 459.

It is conceded by the pleadings that the application for an award was made and denied by the Commission upon the ground that Conrad, at the time of injury, was not in the employ of the defendant, and that the injury was not sustained in the course or scope of his employment.

The question presented is: Does the legal representative of a killed person, who makes an application for an award, waive her right to sue for damages at common law when the sole ground of rejection by the Commission is that at the time of the injury the employe was not in the employ of the defendant, and was not killed in the course of his employment? Since judgment was rendered on the pleadings the fact must be conceded, as alleged in the amended petition, that the deceased was killed "after the termination of his day's employment and while not in the course of his employment."

The petition was not grounded upon the violation of a lawful requirement, or for the commission of a willful act, but was based upon allegations of negligence under the principles of the common law. The accident occurred while Conrad, after completion of his daily work as engineer, was riding homeward on one of the cars of the defendant. It is contended by defendant in error that the relation of employer and employe was not suspended, but remained in a continuous status. An examination of the act discloses that neither by terms nor intendment does it apply to those who are not employes at the time of the injury.

"In order to warrant payment of compensation under the Workmen's Compensation Act it is essential that there should have existed at the time of the calamity a contract of employment between the claimant and the alleged employer." 28 Ruling Case Law, 760, Section 55.

If, in connection with the employment, the employer was under an obligation to transport his employe, the relationship would continue to subsist; in such event the employe might still be considered as continuing in the course of employment under Section 1465-68, General Code. However, the provisions of the act do not comprehend injuries "outside of an disconnected with the business in which an injured workman was employed." (Industrial Commission v. Weigandt, 102 Ohio St. 1, 130 N. E., 38.) Furthermore, Section 1465-68 explicitly applies the provisions of the act to such employes as may be injured or killed in the course of employment. Conrad, therefore, under the allegations of the petition, was wholly without and a stranger to the act; he was not in the employ of the defendant at the time of injury, nor was he killed while in the course of his employment.

The construction of Section 1465-76, General Code, becomes easily reconcilable with this view. That section applies to employers who have complied with the provisions of the Workmen's Compensation Act, and its pertinent provisions read as follows:

"Every employe, or his legal representative in case death results, who makes application for an award, or accepts compensation from an employer * * * waives his right to exercise his option to institute proceedings in any court."

The lower courts held that, under this section, the legal representative, having theretofore made an application for an award, thereby waived her option to institute proceedings to recover damages at common law. The word "employe," wherever used in the section, connotes employment at the time of the injury. It provides in express terms that, where death results to an employe "while in the employ of an employer in the course of employment," the employe may have two options under the section only where the injury arises from a willful act, or from failure to observe a lawful requirement. In such even he " may at his option, either" (a) claim compensation or (b) institute proceedings in court for his damage. The latter proceedings, however, are confined to the proceedings awarded by the section, to-wit, a suit based upon the commission of a willful act, or upon failure to observe a lawful requirement. These are the options given to the injured party. This is clarified by the latter part of the section, where the "proceedings" referred to are the "proceedings in court as provided in this section." The only proceeding in court provided in that section is a suit for damages under the act.

Other provisions of the section sustaining this construction are...

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