Indus. Comm'n of Ohio v. Roth

• Citation: 120 N.E. 172,98 Ohio St. 34
• Decision Date: 02 April 1918
• Docket Number: No. 15526.,15526.
• Parties: INDUSTRIAL COMMISSION OF OHIO v. ROTH et al.
• Court: United States State Supreme Court of Ohio

98 Ohio St. 34
120 N.E. 172

INDUSTRIAL COMMISSION OF OHIO
v.
ROTH et al.

No. 15526.

Supreme Court of Ohio.

April 2, 1918.

Error to Court of Appeals, Jefferson County.

Proceedings by Edwin S. Roth and others for compensation under the Workmen's Compensation Act, opposed by McFeeley Brothers, employer, and the Industrial Commission of Ohio. Compensation was denied, and on appeal to the court of common pleas a general demurrer to the petition was sustained, and the petition dismissed. The judgment was reversed on error by the court of appeals, and the Industrial Commission brings error. Affirmed.

In the fall of 1915, Edwin S. Roth, a boy about 18 years of age, was employed by McFeeley Bros. as a common laborer. McFeeley Bros. had complied with the provisions of the Workmen's Compensation Law, and had paid premiums into the insurance fund of the state of Ohio, as required by that law.

On the 8th day of November, 1915, Roth, in the course of his employment, was ordered and directed to do some painting on a building in the process of construction. Roth, though not a painter, undertook to obey the orders given him; but the weather was so cold that the paint would not flow from the brush. He was then directed by his employers, through their foreman, to take the paint to a small building and heat it; which he did. This small building had no ventilation except the doors and windows, which were closed. The paint, when heated, gave off poisonous fumes and vapors, which were inhaled by Roth while heating it and also while at work with a bucket of hot paint directly under him. This process of heating was required to be done from time to time throughout that day and the next. On the evening of the second day, Roth became ill from the poisonous fumes and gases which he had inhaled, and his illness continued to increase from day to day until it resulted in his death on the 26th day of the same month.

An application was made to the Industrial Commission of Ohio by the defendants in error, who were all partially dependent upon the deceased for support, for compensation on account of the death of Edwin S. Roth. The commission refused to make any award of compensation, and denied defendants in error any right of compensation whatever, for the reason that in the opinion of the commission death resulted from an occupational disease and not from injuries received in the course of his employment. An appeal was taken from this order of the Industrial Commission of Ohio to the court of common pleas of Jefferson county. A petition was filed by the defendants in error averring the above facts. To this petition the Industrial Commission of Ohio filed a general demurrer, which was sustained by the common pleas court and, defendants in error not...