Jenkins v. Keller

• Decision Date: 27 April 1966
• Docket Number: No. 39754,39754
• Citation: 216 N.E.2d 379,35 O.O.2d 147,6 Ohio St.2d 122
• Parties: , 35 O.O.2d 147 JENKINS, Appellant, v. KELLER, Admr., Appellee, et al.
• Court: Ohio Supreme Court

Page 122

6 Ohio St.2d 122

216 N.E.2d 379, 35 O.O.2d 147

JENKINS, Appellant, v. KELLER, Admr., Appellee, et al.

No. 39754.

Supreme Court of Ohio.

April 27, 1966.

Syllabus by the Court

1. Section 4123.54, Revised Code, a part of the Workmen's Compensation Act, authorizes an agreement between an employer and his employee that the workmen's compensation law of Ohio shall apply, where the contract of employment and the work to be performed by the employee, in whole or in part, are, respectively, made and performed in a state other than Ohio. Such statute is not concerned with and makes no reference to an appeal from a decision of the Industrial Commission of Ohio.

2. Section 4123.519, Revised Code, deals with the subject of appeal and provides that a decision of the Industrial Commission in an injury case is appealable to the Court of Common Pleas of the county 'in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state.'

3. Where a contract of employment between an employer and his employee is entered into outside Ohio and the employee sustains an injury in the course of and arising out of his employment outside this state, Section 4123.519, Revised Code, is inapplicable, and the Court of Common Pleas is wholly without jurisdiction to entertain an appeal from a decision of the Industrial Commission in such a case.

4. Courts of Common Pleas do not have inherent jurisdiction in workmen's compensation cases but only such jurisdiction as is conferred on them under the provisions of the Workmen's Compensation Act.

5. Where a court has no jurisdiction over the subject matter of an action or an appeal, a challenge to jurisdiction on such ground may effectively be made for the first time on appeal in a reviewing court.

On August 1, 1963, appellant herein, Virginia Jenkins, widow of John E. Jenkins, on behalf of herself and three minor children filed a claim for death benefits under the workmen's compensation law of Ohio on account of the death of her husband on June 19, 1963. He was a truck driver and was killed while in the performance of duties for his employer, The Youngstown Cartage Company, a corporation and a contributor to the State Insurance Fund. Appellant and her husband were Maryland residents.

Such claim was rejected by the Administrator of the Bureau of Workmen's Compensation and the application for death benefits dismissed. An appeal to the Canton Regional Board of Review was denied, and a further appeal to the Industrial Commission was refused by that body. Whereupon, appellant perfected an appeal to the Court of Common Pleas of Mahoning County. The petition names the administrator and The Youngstown Cartage Company as defendants. Answers were filed by both defendants, a reply followed, and the case was at issue.

Upon hearing, the court found for plaintiff under its interpretation of paragraphs 2 and 3 of Section 4123.54, Revised Code, and rendered judgment accordingly. On an appeal to the Court of Appeals on questions of law, that court found that by the provisions of Section 4123.519, Revised Code, the Court of Common Pleas lacked jurisdiction over the subject matter of the appeal and sustained the administrator's motion to dismiss the notice of appeal and the petition.

An allowance of the motion to require the Court of Appeals to certify the record brings the cause here for review and decision on the merits.

Traxler, Malkoff & Shwartz and Marvin Traxler, Youngstown, for appellant.

William B. Saxbe, Atty. Gen., and Donald M. Colasurd, Columbus, for appellee.

ZIMMERMAN, Judge.

Although not alleged in the petition, it is now agreed by all concerned that Jenkins, the decedent, entered into his contract of employment with The Youngstown Cartage Company at its branch office in the city of Baltimore, Maryland. He met sudden death while engaged in work for his employer in the state of Maryland near that city.

The record discloses that, by reason of the death of her husband, appellant herein applied to the Workmen's Compensation Commission of Maryland for an award on behalf of herself and her three minor children, and that death benefits were granted her there in the sum of $15,000, puls $500 for funeral expenses. Her resort to the Industrial Commission of Ohio was an attempt to obtain the difference between the Maryland award and the larger amount allowed in Ohio as death benefits.

Jenkins and his employer had entered into a written agreement at Youngstown as authorized by Section 4123.54, Revised Code, and on a form designated as C-110, wherein it was stipulated that the workmen's compensation law of Ohio should govern in the event of the injury of death of the employee in the course of and arising out of his employment, and such agreement was filed with the Industrial Commission of Ohio. As far as the record discloses, that agreement was operative when Jenkins died.

So much of Section 4123.54, Revised Code, as is pertinent here, reads:

'Whenever, with respect to an employee of an employer who is subject to and has complied with sections 4123.01 to 4123.94, inclusive, of the Revised Code, there is possibility of conflict with respect to the application of workmen's compensation laws because the contract of employment is entered into and all or some portion of the work is or is to be performed in a state or states other than Ohio, the employer and the employee may agree to be bound by the laws of this state or by the laws of some other state in which all or some portion of the work of the employee is to be performed.'

From a reading of the quoted statute, it is plain that the authorized agreement between an employer and his employee contemplates a situation where the contract of employment and the work to be performed by the employee, in whole or in part, are, respectively, made and performed in a state...