Ginnochio v. Hydraulic Press Brick Co.

• Decision Date: 14 April 1920
• Docket Number: 1804.
• Citation: 266 F. 564
• Parties: GINNOCHIO v. HYDRAULIC PRESS BRICK CO.
• Court: U.S. District Court — Southern District of Ohio

266 F. 564

GINNOCHIO v. HYDRAULIC PRESS BRICK CO.

No. 1804.

United States District Court, S.D. Ohio, Eastern Division.

April 14, 1920

Paxton Warrington & Seasongood, of Cincinnati, Ohio, for plaintiff.

Bulkley Hauxhurst, Saeger & Jamison, of Cleveland, Ohio, and Edward R. Meyer, of Zanesville, Ohio, for defendant.

SATER District Judge.

The charge made in the second amended petition is briefly as follows: The decedent, Curcio, while engaged in the course of his employment by defendant, on account of its negligence met with an injury on January 2, 1914, in consequence of which he died on the day following. The defendant regularly employed at that time more than five workmen and operatives in and about its business and establishment, and had not paid into the insurance fund, as provided by the Workmen's Compensation Act of Ohio, passed March 14, 1913 (103 Ohio Laws, p. 72), any sum for the benefit of employes who might be injured or the dependents of those who might be killed in the course of their employment, and had not otherwise complied with any of the provisions of such act. The prayer is for recovery on account of the defendant's alleged specific acts of negligence.

The second defense contains the following averments: The defendant in December, 1913, and thereafter, employed more than five workmen and operatives regularly in its business. On December 29, 1913, it notified the Industrial Commission successor to the state liability board of awards, of its intention to comply with the above-mentioned act and of its election to pay compensation directly to its injured employes or the dependents of such as might be killed in the course of their employment. Its application for authority so to pay was approved by the commission on January 7, 1914. On January 12 the commission issued its statement of premium to defendant and fixed the amount of the bond required of it under the act. On January 30 such bond was filed and the premium paid. The bond was approved by the commission on February 3. Defendant asserts compliance as of January 1 with the act and the orders of the commission, and claims that at the time of Curcio's injury and death it was entitled to all the protection, rights, and privileges afforded to employers who have complied with its provisions, and that Curcio's dependents are limited to the compensation therein provided, and cannot hold the defendant to respond in damages. The third defense is contributory negligence.

To each of such defenses a demurrer is interposed. The provisions of the statute which deny compensation in cases of injury or death 'purposely self-inflicted' are not involved. If the defenses named are good, it is because defendant's application, which was on file with the commission on January 1, when the act went into effect, and its subsequent compliance within that month with all legal requirements, entitled it to protection at the date of Curcio's accident and death.

Under the well-pleaded facts, admitted by the demurrer to the second defense the defendant, if it complied with the provisions of section 22, is not liable in damages at common law or by statute. Section 23. If it did not thus comply, it is subject to the following pertinent provisions of section 26:

'Employers mentioned in subdivision 2 of section 13 hereof, who shall fail to comply with the provisions of section twenty-two hereof, shall not be entitled to the benefits of this act during the period of such noncompliance, but shall be liable to their employes for damages suffered by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or any of the employer's officers, agents or employes, and also to the personal representatives of such employes where death results from such injuries, and in such action the defendant shall not avail himself or itself of the following common law defenses: The defense of the fellow servant rule, the defense of the assumption of risk or the defense of contributory negligence.'

The defendant, having had in its service down to Curcio's death five or more workmen regularly in its establishment under contract of hire, was an employer within the terms of subdivision 2 of section 13. Curcio was an employe within the definition of that term found in subdivision 2 of section 14. The second subdivision of section 21 provides that the dependents of an employe who is killed 'on and after January 1, 1914,' in the course of his employment, 'shall be entitled to receive, either directly from his employer as provided in section 22 hereof, or from the state insurance fund, such compensation for loss sustained on account of such injury or death, and such medical, nurse and hospital services and medicines, and such amount of funeral expenses in case of death, as is provided by sections 32 to 40 inclusive. ' Section 22, in so far as pertinent, is as follows:

'Except as hereinafter provided, every employer mentioned in subdivision two of section thirteen hereof shall, in the month of January, 1914, and semiannually thereafter, pay into the state insurance fund the amount of premium determined and fixed by the state liability board of awards for the employment or occupation of such employer the amount of which premium to be so paid by each such employer to be determined by the classifications, rules and rates made and published by the board: * * * Provided, * * * that such employers who will abide by the rules of the state liability board of awards and as may be of sufficient financial ability or credit to render certain the payment of compensation to injured employes or to the dependents of killed employes, and the furnishing of medical, surgical, nursing and hospital attention and services and medicines, and funeral expenses equal to or greater than is provided for in this act, * * * may, upon a finding of such facts by the state liability board of awards elect to pay individually * * * such compensation, and furnish such medical, surgical, nursing and hospital services and attention and funeral expenses directly to such injured or the dependents of such killed employes; and the state liability board of awards may require such security or bond from said employers as it may deem proper, adequate and sufficient to compel, or secure to such injured employes, or to the dependents of such employes as may be killed, the payment of the compensation and expenses herein provided for, which shall in no event be less than that paid or furnished out of the state insurance fund, in similar cases, to injured employes or to the dependents of killed employes, whose employers contribute to said fund. * * * '

On May 18, 1915, Wallace D. Yaple, as chairman of the Industrial Commission, after stating the facts disclosed by its record as to defendant's application for classification of industry and premium, which facts are the same as those pleaded in the second defense, wrote the defendant as follows:

'During the month of January, 1914, which was the month in which the Workmen's Compensation Act of 1913 became compulsory, this department was unable to transact the immense volume of business which came to it, which accounts for the delay from December 30, 1913, to January 12, 1914, in advising the company of the amount of its bond and premium, and also for the delay from January 30, 1914, to February 3, 1914, in approving the bond. Section 22 of the Compensation Act seems to contemplate that the employer should have the entire month in which to comply with the provisions of the act by either paying his premium into the state insurance fund or by electing to pay compensation, etc., direct, and we have held in a number of state insurance cases that where an employer paid his premium into the fund at any time during the month of January that he was protected from the 1st day of January. We think the same thing should be true in self-insurance cases as well, and it appears that the Hydraulic Press Brick Company complied with the terms of the act and did all that it was required to do within the month of January; its bond and premium being received on January 30, 1914. That being true, it is our opinion that it complied with the law and that it was under compensation from January 1, 1914.'

No other utterance affecting a case of like character has been cited. The Industrial Commission, however, on July 1, 1914 in Biddinger v. Champion Iron Co., 13 O.L.R. 65, rendered another opinion, which, notwithstanding the difference in facts reflects that body's views and practice in dealing with an employer who proceeds to qualify under the act. The company's application for classification was filed on December 17, 1913. On account of correspondence between it and the commission in reference to the proper classification of the industry in which it was engaged, its classification and rating and the amount of its first annual premium were not determined until March 6, 1914, on which date it was furnished with a 'pay-in order,' directed to the treasurer of state, authorizing him to receive the...