Laudato v. Hunkin-Conkey Const. Co.

• Decision Date: 08 March 1939
• Docket Number: 27155.
• Citation: 19 N.E.2d 898,135 Ohio St. 127
• Parties: LAUDATO v. HUNKIN-CONKEY CONST. CO.
• Court: Ohio Supreme Court

19 N.E.2d 898

135 Ohio St. 127

LAUDATO v. HUNKIN-CONKEY CONST. CO.

No. 27155.

Supreme Court of Ohio

March 8, 1939

Syllabus by the Court.

An employee who receives an injury while engaged in doing work he is employed to do, during the course of which he violates rules of his employer dealing with the method or manner of performing the work, will, notwithstanding such violation, be deemed to have been injured in the course of his employment.

The appellant, the Hunkin-Conkey Construction Company, was a self-insuring employer and the appellee, Patsy Laudato, was an employee of the appellant. On November 14, 1931, appellee received severe injuries as a result of the falling of a material hoist upon which he was riding.

The construction company was engaged in building the administration building of John Carroll University, in University Heights, Cleveland, Ohio. Laudato was a laborer employed in this construction. On the day in question Laudato had been instructed to clear certain rubbish and debris from the sixth or seventh floor of this building, to load the material on a wheelbarrow or buggy, and then to place the wheelbarrow on the material hoist for lowering to the ground level. Another laborer had been assigned to help him in this work.

The appellee placed two wheelbarrow loads of the rubbish on the hoist platform, climbed on the handles of the wheelbarrows and signalled the foreman to lower the hoist. The engineer in response to the signal relayed by the foreman, lowered the material hoist, but because the injector cable 'broke' and spilled water upon the friction brake the engineer could not stop the downward fall quickly enough. The platform struck the ground with considerable force, by reason of which appellee was severely injured.

The appellee thereupon filed a claim with the Industrial Commission of Ohio, which for a period of time granted compensation, but later dismissed the claim. Upon rehearing, the commission again denied the claim on the ground that the proof furnished failed to establish an injury sustained in the course of and arising out of the employment.

The appellant offered evidence on the rehearing to show that the appellee had been instructed to walk down the steps and unload the wheelbarrows; that he had been expressly instructed not to ride the hoist; that the hoist had safety gates at each floor; and that there had been posted on these gates signs prohibiting riding on the hoist.

The appellee contended, however, that not only had he not been instrued not to ride the hoist, but that he had obtained permission to ride from the foreman, and that the foreman saw him on the hoist when he gave the signal to lower the platform.

Appellee appealed to the Common Pleas Court, which, at the first trial entered a final judgment for the claimant, Patsy Laudato, on his motion for judgment upon the pleadings and opening statements. An appeal upon questions of law was perfected by the construction company to the Court of Appeals of Eighth Appellate District, wherein the

judgment was reversed and the cause remanded for trial.

At the close of all the evidence upon the second trial in the Common pleas Court, appellee moved that judgment be entered for him on the evidence, the opening statement and the answer of the appellant, which motion was overruled. After argument, however, the court reversed its ruling and granted the motion, and caused the jury to return a verdict finding that the appellee was entitled to participate in the Workmen's Compensation Fund. Final judgment was entered for the appellee upon the finding and verdict.

A second appeal upon questions of law was perfected by the appellant herein, and the Court of Appeals of the Ninth Appellate District, sitting by designation in place of the judges of the Court of Appeals of the Eighth Appellate District, on May 31, 1938, entered its judgment affirming the judgment of the trial court in favor of Laudato.

The judges of the Court of Appeals of the Ninth Appellate District, finding their judgment in this matter in conflict with the judgment heretofore rendered by the Court of Appeals of the Eighth Appellate District upon this same question in the prior appeal of this case, certified the record to this court as a conflict case for review and final determination.

Horn, Weisell, McLaughlin & Lybarger, of Cleveland, for appellant.

Blase A. Buonpane and Paul Mancino, both of Cleveland, for appellee.

DAY Judge.

The sole question presented is whether appellee's violation of the rule of his employer forbidding workmen to ride the material hoist is a defense sufficient to bar rocovery of compensation under the Workmen's Compensation Law of Ohio. Gen.Code, § 1465-37 et seq.

So much of Section 1465-68, General Code, as is here pertinent, reads: 'Every employe mentioned in section 1465-61, who is injured, 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 out of the state insurance fund for loss sustained on account of such injury or death as is provided in the case of other injured or killed employes * * *.'

Appellant contends, in substance, that an employer has a right to define and limit the scope of employment of his workmen by rules and instructions, and to determine the terms and conditions under which their work is to be prosecuted; that in promulgating and enforcing a rule which forbade its employees to ride the...