Westenberger v. Industrial Commission of Ohio
| Decision Date | 29 March 1939 |
| Docket Number | 27320. |
| Citation | 20 N.E.2d 252,135 Ohio St. 211 |
| Parties | WESTENBERGER v. INDUSTRIAL COMMISSION OF OHIO. |
| Court | Ohio Supreme Court |
Appeal from Court of Appeals, Fairfield County.
Jesse L. Westenberger was a member of the partnership of O'Leary & Westenberger, a contributor to the Workmen's Compensation Fund.
On December 30, 1933, while engaged in the partnership business and acting within the scope of the partnership, he sustained injuries which resulted in his death. His dependent wife filed an application for compensation and the Industrial Commission assumed jurisdiction of the claim and granted an award.
On November 20, 1936, the commission entered an order discontinuing payment for the reason that the decedent 'was a member of the partnership named as the employer in said claim; [and] that, therefore, his dependents are not entitled to participate further in the Workmen's Compensation Fund.' An application for rehearing was filed, a rehearing had and the claimant was denied the right to continue to participate in the fund.
The widow filed her petition in the Court of Common Pleas alleging the foregoing facts. After a demurrer to the petition, challenging jurisdiction of the person and the subject-matter, had been overruled, the commission filed an answer, the second defense of which pleaded that by reason of the provisions of Section 1465-68, General Code, the court was without jurisdiction of the subject-matter. A jury was waived, the court found for the widow, a motion for new trial was overruled and judgment was entered finding that she was entitled to participate in the Workmen's Compensation Fund. On appeal on questions of law the Court of Appeals affirmed the judgment, without opinion, and a motion to certify the record was allowed by this court.
Herbert S. Duffy and T. J. Herbert, Attys. Gen., Eugene Carlin, of Columbus, C. L. Hawthorne, of Steubenville, and E. P. Felker, of Columbus, for appellant.
Silbaugh & Silbaugh, of Lancaster, and Wardlaw, Gertner & Armstrong, of Columbus, for appellee.
The Industrial Commission contends that, inasmuch as that part of Section 1465-68, General Code, which includes members of partnerships as employees within the provisions of the Workmen's Compensation Act, was declared unconstitutional by this court in the case of Goldberg v. Industrial Commission, 131 Ohio St. 399, 3 N.E.2d 364, the widow has no basis for an action for compensation.
Counsel for the widow contend that, having accepted premiums based upon the payroll which included the decedent's salary, the commission is estopped to deny the constitutional validity of the last...
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