State, Ex Rel., v. Indus. Comm.

Decision Date13 December 1933
Docket Number24120
Citation127 Ohio St. 325,188 N.E. 526
PartiesState, Ex Rel. Stuber, v. Industrial Commission Of Ohio.
CourtOhio Supreme Court

Workmen's compensation - Additional compensation for violation of specific requirement - Section 35, Article N, Constitution - Mandamus to compel Industrial Commission to make allowance - Showing necessary that finding constituted abuse of discretion.

In an action in mandamus, to compel the Industrial Commission to make an allowance of additional compensation under the terms of Section 35 of Article II of the Constitution of Ohio, the relator, in order to succeed, must show that the finding of the commission against him amounted to an abuse of discretion.

IN MANDAMUS.

This is an original action in mandamus against the Industrial Commission of Ohio.

The relator, Louis Stuber, alleges that he was employed in the bindery department of the E. H. Sell Company, of Columbus Ohio, a contributor to the Workmen's Compensation Fund that in the course of his employment he fell into the shaft of an elevator maintained by said company in connection with its bindery, and thereby sustained severe injuries; that the Industrial Commission, upon his application, awarded him compensation, at first for temporary total, and later for temporary partial, disability. He then filed an application with the Industrial Commission for an allowance of additional compensation, under the terms of Section 35 of Article II of the Constitution of Ohio, and this latter application was denied. He seeks in this action an order compelling the Industrial Commission to make the additional allowance.

In his petition, the relator alleges that the Sell Company violated the following specific requirements for the protection of the lives, health and safety of its employees:

1. Section 1027, paragraph 4, General Code, which reads as follows:

"They shall case in all unused openings of elevators and elevator shafts and place automatic gates or floor doors on each floor where entrance to the elevator carriage is obtained. They shall keep such gates or doors in good repair and examine frequently and keep in sound condition the ropes, gearing and other parts of elevators."

2. Section 1027, paragraph 6, General Code which reads as follows:

"They shall light the hallways, rooms, approaches to rooms basements and other places wherein sufficient daylight is not obtainable."

3. Section 871-15, General Code, which reads as follows:

"Every employer shall furnish employment which shall be safe for the employes therein, and shall furnish a place of employment which shall be safe for the employes therein, and for frequenters thereof, and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes, follow and obey orders and prescribe hours of labor reasonable adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employes and frequenters."

4. Section 871-16, General Code, which reads as follows:

"No employer shall require, permit or suffer any employe to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health safety and welfare of such employes or frequenters; and no such employer or other person shall hereafter construct or occupy or maintain any place of employment that is not safe."

5. Specific Requirements for Elevators, adopted by the Industrial Commission, page 179:

"The cars of all elevators shall be properly lighted."

6. Specific Requirements for Elevators, adopted by the Industrial Commission, page 186:

"All freight elevators shall be equipped at each landing with self-closing gates not less than 5 1/2 feet in height, except at top landing where such gates must be not less than 3 1/2 feet in height."

It appears by the record that the elevator cab which relator intended to board was not then at his floor, but was higher up in the shaft; that the elevator gate was up and open and stuck in its grooves when the accident occurred; that the approach to the elevator was not lighted, and the bulb was out of the light socket in the corridor near the elevator gate. There was no lamp in the elevator cab itself.

Relator claims that the Sell Company failed properly to inspect the elevator gate, and to keep it greased, and failed to provide proper lights in the corridor and in the elevator cab.

The respondent claims that the relator was not an ordinary employee, but a superior in charge of this elevator, and that he should have seen to its condition and to the installment of the light bulbs which were supplied to him. The record contains evidence in support of the contentions of both sides.

Upon consideration of the evidence, the commission...

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