Goldberg v. Industrial Com'n of Ohio

• Decision Date: 08 July 1936
• Docket Number: 25900.
• Citation: 3 N.E.2d 364,131 Ohio St. 399
• Parties: GOLDBERG v. INDUSTRIAL COMMISSION OF OHIO.
• Court: Ohio Supreme Court

3 N.E.2d 364

131 Ohio St. 399

GOLDBERG v. INDUSTRIAL COMMISSION OF OHIO.

No. 25900.

Supreme Court of Ohio.

July 8, 1936

Appeal from Court of Appeals, Mahoning County.

Syllabus by the Court .

1. Employee-members of a partnership, firm, or association are not embraced within the terms ‘ workmen’ and ‘ employees' as used in section 35 of article II of the Constitution of Ohio relating to workmen's compensation and requiring an award of additional compensation in case of violation of a specific requirement.

2. This section of the Constitution does not confer upon the General Assembly the power to provide for compensation for employee-members of a partnership, firm, or association.

3. The last paragraph of section 1465-68, General Code (111 Ohio Laws, p. 218), purporting to provide for such compensation is unconstitutional and void.

4. Ordinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed.

The plaintiff applied to the Industrial Commission for compensation for an injury claimed to have been suffered by him on February 12, 1929, while working at a fixed salary for a partnership consisting of himself and his brother. The claim was denied.

An appeal was perfected to the court of common pleas. This resulted in a directed verdict and judgment in favor of the plaintiff's participation in the fund.

Error was prosecuted to the Court of Appeals, and the judgment was affirmed.

The cause is in this court by reason of an appeal as a matter of right upon debatable questions of constitutional law.

John W. Bricker, Atty. Gen., and R. R Zurmehly, of Columbus, for appellant.

Reuben Segall, of Youngstown, for appellee.

WEYGANDT, Chief Justice.

The plaintiff filed his claim under favor of the last paragraph of section 1465-68, General Code, as amended in 1925 (111 Ohio Laws, p. 218), which reads as follows:

‘Any member of a partnership, firm or association composed of two or more individuals, who is paid a fixed compensation for services rendered to such partnership, firm or association, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self-inflicted, shall be paid such compensation and benefits as are provided in case of other injured, diseased or killed employees by this act, provided such partnership, firm or association includes in the pay roll furnished by it to the industrial commission the compensation of such member and pays the premium based thereon.’

It is the contention of the defendant that this statutory amendment is violative of sections 26 and 35 of article II of the Constitution of Ohio. The latter of these, as amended at the 1923 election, now contains the following language:

‘For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto. Such board shall set aside as a separate fund such proportion of the contributions paid by employers as in its judgment may be necessary, not to exceed one per centum thereof in any year, and so as to equalize insofar as possible, the burden thereof, to be expended by such board in such manner as may be provided by law for the investigation and prevention of industrial accidents and diseases. Such board shall have full power and authority to hear and determine whether or not an injury, disease, or death resulted because of the failure of the 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 board, and its decision shall be final; and for the purpose of such investigations and inquiries it may appoint referees. When it is found, upon hearing, that an injury, disease or death resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury, disease, or death, and paid in like manner as other awards; and, if such compensation is paid from the state fund, the premium of such employer shall be increase in such amount, covering such period of time as may be fixed, as will recoup the state fund in the amount of such additional award, notwithstanding any and all other provisions in this constitution.’

Specifically the defendant claims that this section of the Constitution does not empower the Legislature to include partners among employees, as has been clearly attempted in the...