Mabley & Carew Co. v. Lee, 24660.

• Citation: 129 Ohio St. 69,193 N.E. 745
• Decision Date: 27 November 1934
• Docket Number: No. 24660.,24660.
• Court: United States State Supreme Court of Ohio
• Parties: MABLEY & CAREW CO. v. LEE.

129 Ohio St. 69
193 N.E. 745

MABLEY & CAREW CO.
v.
LEE.

No. 24660.

Supreme Court of Ohio.

Nov. 27, 1934.

Action by Marguerite Lee, a minor, by Catherine Lee, her mother and next friend, against the Mabley & Carew Company. A judgment sustaining defendant's demurrer to the petition was reversed by the Court of Appeals, and the cause remanded, and the case was then certified to this court.-[Editorial Statement.]

Judgment of the Court of Appeals reversed and that of the Court of Common Pleas affirmed.

In the trial court the position of the parties was the reverse of that in which they now appear.

The plaintiff filed the following petition:

‘Plaintiff says defendant is a corporation organized and existing under the laws of the State of Ohio, and is a contributor to the State Instruance fund administered by the Industrial Commission of Ohio.

‘Plaintiff says that during the month of December, 1931, she was employed by the defendant company in its wrapping department and other departments in and about defendant's store at Fifth and Vine Streets, Cincinnati, Ohio; that plaintiff was at that time 16 years of age, which age was well-known to defendant. That she was employed by defendant company from the hours of 9 o'clock A. M. until 10 or 11 o'clock P. M., with 30 minutes for lunch, being 12 1/2 to 13 1/2 hours per day, and 75 to 80 hours per week. That by employing plaintiff, and permitting and suffering her to work for more than eight hours in any one day, 48 hours in any one week and after the hour of six P. M. in the evening, defendant violated Ohio General Code, Section 12996, which provides in part:

Ҥ 12996. Employment of Minors, Male and Female; Hours per Day and Days per Week.-No boy under the age of sixteen and no girl under the age of eighteen years shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in section 12993 (1) for more than six days in any one week, (2) or more than forty-eight hours in any one week, (3) nor more than eight hours in any one day, (4) or before the hours of seven o'clock in the morning or after the hour of six o'clock in the evening. The presence of such child in any establishment during working hours shall be prima facie evidence of its employment therein.'

‘That the establishments listed in Section 12993, referred to above, include stores.

‘Plaintiff says that as the direct and proximate result of defendant's violation of said section plaintiff became physically exhausted and suffered a nervous breakdown, became subject to violent nervous attacks with visible outward manifestations thereof, and from which she has continued to suffer to the present time; that she was forced to seek medical attention, was incapacitated from doing work of any kind, that said attacks cause her great embarrassment and mental distress, and have greatly damaged her social position, all to plaintiff's damage in the sum of $15,000.00.

‘Wherefore, plaintiff prays judgment against defendant in the sum of $15,000.00 and her costs herein.’

To this petition the defendant filed a demurrer upon the grounds (1) that the court had no jurisdiction of the person of the defendant; (2) that the court had no jurisdiction of the subject of the action; and (3) that the petition did not state facts sufficient to constitute a cause of action. This was sustained by the trial court upon the ground that ‘the plaintiffs' allegations fall completely within the terms of the Constitution [Article, II, Section 35] exempting the employer from liability, and therefore states no cause of action.’

Upon the prosecution of error proceedings, the Court of Appeals reversed the judgment of the trial court and remanded the cause upon the grounds that ‘the Plaintiff's petition does not show a right to any claim under the Workmen's Compensation Law [Gen. Code § 1465-37 et seq.]; that the law does not indicate any intention of the Legislature to enlarge or diminish the rights of employees, except where the injury or disease is within the compensation feature of the law; that the right of the employeee of recovery at common law exists; and under the law of Ohio as declared by the Supreme Court that a violation of law which is the proximate cause of the injury complained was negligence per se.’ The Court of Appeals then certified the case to this court on the theory that the decision is in conflict with that of the Court of Appeals of Lucas county in the case of Ewers, Adm'x v. Buckeye Clay Pot Co., 29 Ohio App. 396, 163 N. E. 577.

[Ohio St. 71]

[193 N.E. 746]

LeBlond, Morrissey, Terry & Gilday and Paul McQueen, all of Cincinnati, for plaintiff in error.

Cedric Vogel, of Cincinnati, for defendant in error.

BY THE COURT.

The issues here presented involve a comparison and construction of the provisions of Article II, Section 35, of the Constitution of Ohio as they now stand and as they read before the amendment effective January 1, 1924.

In its earlier and briefer from this section consisted of the following language, the italicized part of which was eliminated by the amendment:

‘For the purpose of providing compensation to workmen and their dependents, for death, injury 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, and taking away any or all rights of action or defenses from employees and employers; but no right of action shall be taken away from any employee when the injury, disease or death arises from failure of the employer to comply[Ohio St. 72]with any lawful requirement for the protection of the lives, health and safety of employees. 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.’

The present language is as follows, with the new wording indicated by italics:

‘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.[Ohio St. 73]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 increased in such amount, covering such period of time as may be fixed, as will recoup the

[193 N.E. 747]

state fund in the amount of such additional award, notwithstanding any and all other provisions in this constitution.’

Counsel also discuss Section 1465-76, General Code, and certain decisions of this court under the earlier provisions of Article II, Section 35. But manifestly these cannot be...