State, Ex Rel., v. Indus. Comm.
| Decision Date | 01 November 1933 |
| Docket Number | 23845 |
| Citation | 127 Ohio St. 187,187 N.E. 719 |
| Parties | The State, Ex Rel. Post, v. Industrial Commission Of Ohio. |
| Court | Ohio Supreme Court |
Workmen's compensation - Failure to comply with specific requirement - Municipal corporations subject to constitution, statutes and departmental orders - Section 35, Article II, Constitution - Section 1027, General Code - Section 16, General Safety Standards Code for Workshops and Factories.
Municipal corporations are included within the provisions of Section 35 of Article II of the Constitution of Ohio, Section 1027 General Code, and Section 16 of the General Safety Standards Code for Workshops and Factories, relating to the failure of an employer to comply with any specific requirement for the protection of the lives, health or safety of employes.
IN MANDAMUS.
Plaintiff Eva Post, has filed her original petition in this court alleging, in substance, that on June 17, 1928, her husband John B. Post, was an employe in a pumping station maintained and operated by the village of North Canton, Ohio, for the purpose of supplying water to its inhabitants; that while adjusting an oiling device on a station engine, he was caught in the flywheel and fatally injured; that the relator filed a claim with the respondent and obtained an award of $6,500; that later she filed an application asking the respondent for additional compensation under Section 35 of Article II of the Constitution of Ohio, on the ground that her husband's death was caused by the failure of the municipality to inclose said flywheel with a guard rail, as specifically required by statute and by respondent's order, and that her application was dismissed with the following entry:
In the prayer of her petition the relator asks "that an alternative writ of mandamus issue commanding said respondent, the Industrial Commission of Ohio, to hear and determine whether or not the death of J. B. Post, her husband, resulted because of the failure of the village of North Canton, Ohio, to comply with any specific requirement for the protection of the lives, health and safety of employees, enacted by the General Assembly, or in the form of an order adopted by the Industrial Commission of Ohio, and if it is found, upon said hearing, that the death of the said J. B. Post resulted because of such failure of the village of North Canton, Ohio, to add to the award heretofore made her, such amount as said respondent shall find to be just, not greater than fifty nor less than fifteen per centum of the maximum award due her as established by law."
To this petition the respondent filed a demurrer on the ground that the allegations thereof are not suffi- cient to constitute a cause of action. The demurrer was overruled.
The respondent then filed an answer admitting that on or about January 17, 1928, J. B. Post was in the employ of the division of waterworks of the village of North Canton, Ohio; that his duties, among other things, required the oiling and lubricating of a coal-oil engine, located in the pumping station of said waterworks division; that while he was so engaged the said J. B. Post came in contact with and was caught by the flywheel of said engine, and was injured and died as the result of said injuries on the said 17th day of January, 1928; that said engine was attached to a concrete base; that this relator was the wife of the said J. B. Post, and subsequent to his death filed with this respondent an application for compensation from the said insurance fund; that compensation was allowed according to law; that thereafter she filed with this respondent an application for an additional award because of the violation of a specific requirement on the part of the employer; and that said application was denied for the reasons set forth in relator's petition. Then the respondent denies "each and every allegation contained in relator's petition which is not herein subsequently admitted to be true."
To this answer the relator has filed a motion for judgment on the pleadings, on the ground that the effect of the respondent's general denial is to raise no question of fact except the two immaterial ones as to whether the municipality violated a specific requirement, and, if so, whether such violation caused the death of the relator's decedent.
Mr. John F. Cholley and Mr. Stanley S. Stewart, for relator.
Mr. John W. Bricker, attorney general, Mr. R. R. Zurmehly and Mr. A. R. Arbaugh, village solicitor, for respondent.
The relator's motion presents two questions. The first involves the materiality of the two issues of fact presented by the answer. In other words, is it necessary for this court to determine whether the municipality violated a specific requirement, and, if so whether such violation caused decedent's deaths An examination of the relator's prayer clearly indicates that this must be answered in the negative. The relator does not ask this court to decide these questions of fact; she asks merely that the court direct the respondent, Industrial Commission, to hear and determine them. Therefore, the answer raises no issue of fact material in this action in this court.
The second question presented by this motion is whether the provisions of Section 1027, General Code, and of Section 16 of the General Safety Standards Code for Workshops and Factories, are applicable to municipal corporations, as alleged in the relator's petition. Obviously this is the same question that was decided by this court at the time the respondent's demurrer to...
To continue reading
Request your trial