State ex rel. Reed v. Industrial Commission
| Decision Date | 02 June 1965 |
| Docket Number | No. 38827,38827 |
| Citation | 2 Ohio St.2d 200,207 N.E.2d 755,31 O.O.2d 408 |
| Parties | , 31 O.O.2d 408 The STATE ex rel. REED, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
An employer who neither owns nor is responsible for the condition and maintenance of a device used by his employee in doing work for the owner thereof, which device as constructed is violative of a specific safety requirement imposed by law or by an order of the Industrial Commission, and the employee is injured in its use and because of its condition, such employer is not the 'employer' comprehended by Section 35, Article II of the Constitution of Ohio, for whose disregard of a specific safety requirement the Industrial Commission is empowered to make an additional compensation award to the injured employee.
This is an action in mandamus which originated in the Court of Common Pleas of Franklin County. Robert E. Reed is the relator, and the Industrial Commission of Ohio is the respondent. The question for decision is whether in the circumstances relator's employer is chargeable with a violation of a specific safety requirement and thereby subject to the penalty (State ex rel. Emmich v. Industrial Commission, 148 Ohio St. 658, 76 N.E.2d 710, paragraph three of the syllabus) imposed by Section 35, Article II of the Constitution of Ohio, with the plain duty resting on the respondent to determine the amount of the additional award to relator, as provided in Section 4121.131, Revised Code.
Relator was an employee of Robert L. Sweigart. The latter had been engaged by the S. J. Rudy & Son Company to repair the warped exterior walls of silo-type storage bins connected with a grain elevator in Covington, Ohio, owned and operated by Rudy. To facilitate the repair work, Rudy informally permitted Sweigart to use an electric powered elevator or lift installed and owned by Rudy and located between two of the bins. As the elevator cage occupied by relator and a fellow employee was ascending next to the bins, relator extended his head out of the rear of the cage, and it was caught 'between the back of the cage enclosure and the edge of the shaftway opening at the top of the bins,' resulting in substantial injuries to relator. It appears to be conceded that the construction and maintenance of the cage violated sections of Bulletin 110 of the Code of Specific Safety Requirements covering passenger and freight elevators.
Relator's claim for workmen's compensation and medical expenses was allowed by respondent and paid. Later, relator filed an application for an additional award on the ground that his injuries were due to the violation by his employer of a specific safety requirement. Such application was denied on hearing and rehearing. Thereupon, the present action in mandamus was brought. The writ was allowed by the Court of Common Pleas. On an appeal on questions of law, the Court of Appeals reversed the judgment below and stated in the journal entry:
'In consideration of the petition, the answer, stipulation of facts, briefs and oral arguments of the parties, the court finds that the order and judgment of the Common Pleas Court was in error in granting the writ prayed for.
'It is therefore, ordered, adjudged and decreed that the order of the Common Pleas Court granting the writ prayed for is reversed, and the order to issue the writ directing the Industrial Commission to make an additional award is set aside and held for naught.'
An appeal as of right and the allowance of a motion to require the Court of Appeals to certify the record bring the cause before this court for decision.
Fullerton & Shimp, Columbus, for appellant.
William B. Saxbe, Atty. Gen., Robert M. Duncan, John A. Sentz, Jr., Columbus, and Pierce E. Cunningham, Hamilton, for appellee.
As relevant, Section 35, Article II of the Constitution of Ohio, recites:
Paragraph one of the syllabus of Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484, holds:
'Section 35 of Article II of the Ohio Constitution, as amended in 1923, conferred upon the Industrial Commission of Ohio 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;' upon that question of fact the decision of the commission is final.'
'* * * [R]elator in an action in mandamus to compel the allowance of an additional award must show that the finding of the Industrial Commission against him amounts to an abuse of discretion.' State ex rel. Berry v. Industrial Commission, 129 Ohio St. 228, 194 N.E. 414. See, also, State v. Ohio Stove Co., 154 Ohio St. 27, at pages 36 and 37, 93 N.E.2d 291, which emphasizes the point that it is the failure of the employer to comply with a specific lawful requirement which is the basis for the imposition of an additional award.
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