Indus. Comm. v. Ahern
| Decision Date | 31 May 1928 |
| Docket Number | 20973 |
| Citation | 162 N.E. 272,119 Ohio St. 41 |
| Parties | Industrial Commission Of Ohio v. Ahern. |
| Court | Ohio Supreme Court |
Workmen's compensation - Injuries "in the course of employment" - Meaning of phrase cannot be changed by employer's rules, regulations or custom - Employer cannot place employee in employment if no employment in fact exists - Injury must be sustained in performance of required duty in employer's service - Injuries to employee pursuing private and personal business, not compensable.
1. No custom, rule or regulation, adopted by an employer, will be permitted to place an employee in his employment, if no employment in fact existed at the time of the injury, or if such custom, rule or regulation materially changes the ordinary and commonly accepted meaning of the phrase "in the course of employment.
2. Under Section 35, Article II of our Constitution, and the law enacted pursuant thereto, the phrase, "in the course of employment," connotes an injury sustained in the performance of some required duty done directly or incidentally in the service of the employer.
3. An employee who is injured when engaged, not in the service of an employer, but in pursuance of the employee's private and personal business, disconnected with the employment, is not entitled to compensation under the Workmen's Compensation Law.
The Pogue Company conducted a department store in Cincinnati and was a contributor to the state insurance fund. Nanie Ahern the defendant in error, was a saleslady in the shoe department on the first floor. On April 14, 1925, at about 9:30 a. m., she left her floor and went to the rug department on the fourth floor for the purpose of buying a rug for herself. While inspecting the rug it slipped from under her, causing her to fall backwards. She suffered fractures of her wrists and applied to the Industrial Commission for compensation.
The commission denied her application on the ground that she did not receive her injury "in the course of and arising out of her employment." A rehearing was denied, and appeal taken to the Common Pleas Court, where the cause was heard upon the issue joined by the second amended petition of plaintiff and the answer of the commission. The issue made was whether the plaintiff was injured in the course of her employment. The cause came on for trial, and the jury returned a verdict awarding compensation for temporary total disability for a period of eight weeks, and also included in their verdict an additional sum for hospital and medical services amounting to more than $200. The trial court rendered judgment on the verdict, which was later affirmed by the Court of Appeals. This court permitted a certification of the record here for review.
In addition to the facts recited above, and in support of her claim that her injury was sustained in the course of her employment, Ahern introduced in evidence the statement of an official of the Pogue Company. This official stated:
"That under the rules and regulations of said company, employees thereof in the course of their employment and as a privilege arising out of said employment, after coming to work, are permitted, before the hour of 10 o'clock a. m., to go to other departments of the store than that in which they work and purchase articles for their own personal use at a discount off the sales price to the public that these purchases are made on the company's time and no deduction from the employee's pay is made for the time taken in making said purchases; that this has long been the custom in said store and 'i-s incidental. to the employment of said employees by said company; and this practice is encouraged by the management."
Mr Edward C. Turner, attorney general, Mr. R. R. Zurmehly and Mr. Clarence A. Dorger, for plaintiff in error.
Messrs Dinsmore, Shohl & Sawyer, for defendant in error.
It is conceded that the injury occurred on the employer's premises and during the time for which the employee was paid. It is also conceded that the employer permitted Ahern to go to any other department of the store for the purpose of purchasing articles for her own personal use at a discount from the general sales price, and that the employee at the time of her injury was exercising this privilege.
While other errors are urged here, especially one relating to the authorization of a judgment for more than $200 under Section 1465-89, General Code, the chief question urged, and dispositive of the case, is: Does the evidence support the verdict finding that the plaintiff below was injured in the...
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