State ex rel. Whitman v. Industrial Commission of Ohio
| Decision Date | 01 July 1936 |
| Docket Number | 25905. |
| Citation | 3 N.E.2d 52,131 Ohio St. 375 |
| Parties | STATE ex rel. WHITMAN v. INDUSTRIAL COMMISSION OF OHIO. |
| Court | Ohio Supreme Court |
Appeal from Court of Appeals, Franklin County.
Syllabus by the Court .
Article II, section 35, of our State Constitution, authorizes the imposition of an additional award only upon an employer who has failed to comply with a specific requirement. The language and spirit of the constitutional provision, properly construed, authorize such imposition only upon that employer whose failure to comply caused death or injury to his employee.
This is an action in mandamus which originated in the Court of Appeals and comes to this court as a matter of right. Van Gundy & Beck Company, general contractors, entered into a contract with a board of education to construct an addition to a school building. Van Gundy & Beck Company sublet the lathing part of the contract to one Rosseau, a subcontractor. The contractor and subcontractor each employed three or more workmen in the performance of work on the contract. Van Gundy & Beck Company was a contributor to the State Insurance Fund but Rosseau was not.
Whitman the appellant, an employee of Rosseau, was injured in the course of employment on December 10, 1931. He filed a claim against Van Gundy & Beck Company with the Industrial Commission for the injury and was allowed compensation. On April 11, 1933, he filed with the commission an application for an additional award against Van Gundy & Beck Company, assigning as a reason therefor that the scaffolding provided by Rosseau, the subcontractor, was constructed contrary to the provisions of sections 145 and 152 of the Code of Specific Requirements, adopted by the Industrial Commission for the safety of employees engaged in building and other construction work. Whitman alleges that because of Rosseau's violation of these requirements and his injuries resulting from such violation, he has a right of recovery under favor of section 1465-61, General Code. The appellant alleges in his petition that, although the commission found that his injury was caused by the scaffolding not being constructed as required by the foregoing sections of the Building Code, it denied appellant an additional award ‘ for the sole reason as found by said commission that said Van Gundy & Beck Company were not directly responsible for said violation.’ The Court of Appeals sustained appellee's demurrer to appellant's petition containing the foregoing facts, and dismissed relator's petition.
Jones & Henderson, of Columbus, for appellant.
John W. Bricker, Atty. Gen., and R. R. Zurmehly, of Columbus, for appellee.
Section 1465-61, subd. 3, General Code, reads: ‘ Every person in the service of any independent contractor or sub-contractor who has failed to pay into the state insurance fund the amount of premium determined and fixed by the industrial commission of Ohio * * * shall be considered as the employee of the person who has entered into a contract, * * * with such independent contractor unless such employees, * * * elect, after injury or death, to regard such independent contractor as the employer.’
Counsel for relator rely upon this section of the Code as the basis of his right to recover, not only the ordinary compensation provided by law for injury or death, but also any additional award resulting from the failure of his employer, Rosseau, to comply with specific requirements adopted by the Industrial Commission for the safety of employees. The ordinary award has been paid. The commission refused to pay the additional award for the reason that, if there were a violation of a specific requirement, the Van Gundy & Beck Company was not responsible for the violation.
In the case of De Witt v. State ex rel. Crabbe, Atty. Gen., 108 Ohio St. 513, 141 N.E. 551, this court held that under the quoted section the Van Gundy & Beck Company could be...
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