Suez Co. v. Young

• Decision Date: 06 May 1963
• Citation: 25 O.O.2d 315,118 Ohio App. 415,195 N.E.2d 117
• Parties: , 25 O.O.2d 315 The SUEZ CO., Appellant, v. YOUNG, Adm'r., et al., Appellees. *
• Court: Ohio Court of Appeals

Page 415

118 Ohio App. 415

195 N.E.2d 117, 25 O.O.2d 315

The SUEZ CO., Appellant, v. YOUNG, Adm'r., et al., Appellees. ^*

Court of Appeals of Ohio, Sixth District, Lucas County.

May 6, 1963.

Hood, Howard & Howard, Toledo, for appellant.

Burgess & Callahan, Toledo, for appellee John J. Greene.

SMITH, Judge.

This is an appeal on questions of law from the order of the Common Pleas Court granting a motion of plaintiff-appellee to dismiss the notice of appeal of appellant-employer to said court from the order and decision entered by the Toledo Regional Board of Review upon which the Industrial Commission of Ohio refused an appeal, such notice having been mailed to the commission and received by the employer.

The error assigned is the granting of the motion upon which the court dismissed the appeal. The motion reads as follows:

'Now comes John J. Greene, appellee herein, appearing specially for the purpose of this motion and not submitting himself to the jurisdiction of this court, and moves the court to dismiss the appeal filed herein by The Suez Company for the reason that The Suez Company is an employer who has not complied with the Workmen's Compensation Act of Ohio and is therefore not entitled to appeal under the provisions under Section 4123.519, Revised Code of Ohio, as amended.'

The journal entry of the Common Pleas Court is as follows:

'The court, being duly advised in the premises and after considering the memoranda submitted by counsel, finds that The Suez Company, appellant herein, was at the time of the alleged injury to appellee John J. Greene, an employer amenable to the provisions of the Workmen's Compensation Act of Ohio and that said employer failed to comply with the provisions of said Act and was, therefore, a noncomplying employer within the meaning of said Act.

'The court further finds that it is without jurisdiction to consider the appeal of a noncomplying employer under Section 4123.519, Ohio Revised Code, and that appellee's motion is well taken and should be granted.

It is therefore, ordered, adjudged and decreed that the motion of appellee, John J. Greene, be and hereby is granted, and that the appeal be, and hereby is dismissed.'

While a bill of exceptions was not filed in this case, appellant, employer, contends first that there is nothing in the record as submitted to this court of any evidence before the lower court upon which it could make a finding that appellant was a noncomplying employer under the provisions of the Workmen's Compensation Act of Ohio, and, second, that even though a trial court had evidence upon which to find appellant to be a noncomplying employer under the Workmen's Compensation Act, Section 4123.519 of the Revised Code affords a noncomplying employer a right to appeal to the Common Pleas Court.

The first contention of the appellant is not well taken for the reason that this court will presume that the trial court heard and considered evidence before rendering judgment, if such presumption is necessary to sustain the judgment and is not necessarily excluded by the record, because, in the absence of a bill of exceptions, it has been held to be a general rule that if there is a state of facts which will sustain the judgment it will be conclusively presumed by a reviewing court that evidence of such state of facts was before the trial court, and, as in this case where the existence thereof is not negatived by findings incorporated in the entry of the judgment. 3 Ohio Jurisprudence (2d), 684-685; Haskins v. Alcott & Horton, 13 Ohio St. 210, 219; Dallas v. Ferneau, 25 Ohio St. 635, 638; Lingler v. Wesco, Admr., 79 Ohio St. 225, 242, 86 N.E. 1004, 21 L.R.A.,N.S., 182.

In Galley v. Galley, 13 C.C. (N.S.), 522, 23 C.D., 161, it is held that where a cause is submitted to the court, a finding made and judgment rendered, it will be presumed that evidence was offered in support of such findings although the judgment entry contains no recital that the cause was heard upon the evidence. There is an absence in this case upon the record of anything of which the reviewing court may take judicial notice that no hearing was had or evidence taken by the trial judge as to the fact of the appellant being a noncomplying employer. See Strain v. Isaacs, 59 Ohio App. 495, 18 N.E.2d 816. The nature of the proceeding and the circumstances shown by the record in the case of Brown v. Lamb, 112 Ohio App. 116, 171 N.E.2d 191, cited by appellant are not applicable to the record in this case before this court.

The second main contention of appellant is that Section 4123.519, Revised Code, provides for an appeal to the Common Pleas Court by an employer amenable thereto and who has failed to comply with the provisions of the Workmen's Compensation Act. We are required, therefore, to consider the composite act in construing the provisions of that section, the pretinent parts of which read as follows:

'The claimant or the employer may appeal a decision of the industrial commission in any injury case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicated * * *. Like appeal may be taken from a decision of a regional board from which the commission had refused to permit an appeal to the commission provided [however] that the claimant may take an appeal from a decision of the administrator on application for reconsideration or from a decision of a regional board * * *. The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of such action * * *. An appeal from a decision of the commission in which an award of compensation has been made shall not stay the payment of compensation under such an award or payment of compensation for subsequent periods of total disability during the pendency of the appeal * * *.'

The Workmen's Compensation Act has long been recognized as a comprehensive law in its entirety to provide compensation to injured workmen in the course of their employment, founded upon wise, beneficent and humanitarian principles in creating a fund for that purpose in the nature of insurance. By Section 4123.35, Revised Code, employers who have three or more employees are required to comply therewith and certain sections circumscribe the status of the noncomplying employer with sanctions, restrictions and penalties specifically and categorically prescribed. The Act in its various sections, being in pari materia, must be construed together to arrive at an interpretation of the intention of the Legislature. State, ex rel. Crawford, Exr., v. Industrial Commission, 110 Ohio St. 271, 280, 143 N.E. 574.

Section 4123.77, Revised Code, provides that employers, as defined by Section 4123.01, Revised Code, failing to comply with Section 4123.35 of the Revised Code are not entitled to the benefits of Sections 4123.01 to 4123.94, inclusive, of the Revised Code, during the period of such noncompliance and are liable to the employee in an action for injury in which the employer is deprived of the common-law defenses of fellow-servant rule, assumption of risk and contributory negligence, and are also subject to Sections 4123.37 and 4123.75, Revised Code.

Section 4123.37, Revised Code, in the main provides that the amenable noncomplying employer, after notice from the Industrial Commission that it has determined the period of time for compliance, shall, within 20 days thereof, furnish the Industrial Commission with the payroll covering such period and such employer shall pay into the State Insurance Fund the amount of the premium applicable to such payroll. The penalty for not complying with these steps is an assessment by the Industrial Commission of the amount of the premium to be paid. If, after notice to the employer of the assessment, he fails to file with the commission within 20 days of receipt thereof a petition setting up objection to the items of the assessment, the assessment shall become conclusive and due and payable to the State Insurance Fund. Further provisions are made in the event a petition is filed by the employer. In the event no petition is filed or finding made after petition filed, 'a certified copy of the assessment as affirmed or modified may be filed by the Industrial Commission in the office of the clerk of the Court of Common Pleas in any county in which the employer has property or in which the employer has a place of business. The clerk, immediately upon the filing of such assessment, shall enter a judgment for the state against the employer in the amount shown on the assessment.'

Section 4123.75, Revised Code, gives the injured employee of a noncomplying employer the right to make application directly to the Industrial Commission and have his claim heard and determined. Any compensation awarded by the commission is on the basis as if the employer had complied with the act. 'If the employer fails to pay such compensation to the person entitled thereto, or fails to furnish such bond, within a period of ten days after notification of such award, the award shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the commission, and the commission shall certify the same to the attorney general who shall forthwith institute a civil action against such employer in the name of the state for the collection of such award.'

In the action by the state, the certified copy of the commission's proceedings is prima facie evidence as to the pertinent facts. This provision in effect places a burden on the defendant employer to rebut the findings of the commission. In such action, answer or demurrer to the petition shall be filed within ten days and when the issues are made up it is further provided the case shall be placed at the head of the trial docket and shall be first...