Fisher Body Co. v. Cheflo

• Court: Ohio Supreme Court
• Writing for the Court: JONES, J.
• Citation: Fisher Body Co. v. Cheflo, 122 Ohio St. 142, 171 N.E. 31 (Ohio 1930)
• Decision Date: 19 March 1930
• Docket Number: 22036
• Parties: The Fisher Body Co. v. Cheflo.

171 N.E. 31

122 Ohio St. 142

The Fisher Body Co. v. Cheflo.

No. 22036

Supreme Court of Ohio

March 19, 1930

Workmen's compensation - Appeal to common pleas court - Section 1465-90, General Code - Court or jury cannot determine disability or amount of compensation - Court cannot fix definite attorney fee, but only percentage of award.

1. When the Industrial Commission has found that it has no jurisdiction of an applicant's claim and no authority to inquire into the extent of his disability or amount of compensation, and the applicant has filed, under favor of Section 1465-90, General Code, a petition to review such finding, neither the trial court nor the jury has authority to determine the extent of applicant's disability or the amount of compensation which he should receive; the determination of those questions is confided to the commission. (State, ex rel. Kauffman, v. Industrial Commission, 121 Ohio St. 472, 169 N.E. , 672, approved and followed.)

2. In such a case, while the trial judge may fix an attorney fee in favor of claimant's counsel, his authority to do so is limited to the method and to the percentages named in the foregoing section.

On June 22, 1927, Crezio Cheflo, an employee of the plaintiff in error, a self-insurer, sustained an injury alleged to have been received in the course of his employment. He continued to work until the following September, and later applied to the industrial commission for an allowance of compensation due him for partial disability resulting from hernia caused by the injury. On January 19, 1928, on application for rehearing of his claim, the industrial commission appointed a commission to take testimony. in April, 1928, the claim was continued by the commission, and on November 28, 1928, upon a rehearing, the applicant's claim was disallowed upon a finding of facts made by the commission, as follows: "That this claim on rehearing be disallowed, for the reason that proof of record does not establish that the condition complained of was due to an injury received in the course of employment." The commission therefore found that it had no jurisdiction or authority to inquire into the extent of disability or amount of compensation.

Thereupon Cheflo filed his petition in the court of common pleas issues were joined by an answer, and the cause was submitted to a jury, which found in favor of the plaintiff and by its verdict awarded him compensation in the sum of $18.75 per week for 125 weeks, beginning September 25, 1927, for temporary partial disability. A motion for a new trial filed by the defendant was overruled by the trial court, which rendered a decree adjudging that the plaintiff recover compensation for the amount specified in the verdict. The judgment of the court, however, ordered that the payments should begin September 18, 1927; and in its journal entry the trial court allowed plaintiff's counsel the sum of $175 to be taxed as part of the costs.

The Cuyahoga county Court of Appeals affirmed the judgment and certified the cause to this court for further review because its judgment was in conflict with a judgment pronounced upon the same question by the Court of Appeals of Lucas county.

Messrs Tolles, Hogsett & Ginn and Mr. George D. Bonebrake, for plaintiff in error.

Messrs. Cerrezin & Wilson and Mr. M.C. Harrison, for defendant in error.

JONES J.

The judgment of the Court of Appeals of Lucas county, with which this judgment of the Court of Appeals of Cuyahoga county is certified as being in conflict, was pronounced on February 25, 1929, in the case of Industrial Commission v. Pomeroy, and reported in 33 Ohio App. 80, 168 N.E. , 572. Counsel for plaintiff in error advance several reasons as grounds for reversal of the judgment of the Cuyahoga county court.

The industrial commission disallowed the applicant's claim because the proof did not show that his injury was received in the course of employment. Plaintiff in error contends that neither the court nor jury had authority to fix the amount of compensation or to inquire into the extent of disability. Before argument the defendant specially requested the court to charge the jury that if they determined the right of plaintiff to recover they should not determine what amount the plaintiff should receive as compensation, nor for what period he should receive it. The court refused to give the special request, and charged the jury that, if they found for the plaintiff, it was within their discretion to determine for what number of weeks it allowed compensation, limited to two-thirds of his earning capacity, but not exceeding $18.75 per week. The question, therefore, succinctly stated, is this: Was it within the province of the court or jury if they found in favor of the plaintiff, to determine the extent of disability or the amount of compensation which the applicant should receive? The lower courts answered that question in the affirmative. No doubt they would have done otherwise had they known of a later decision of this court upon this subject, reported...