Opinion
No. 22178
Decided June 18, 1930.
Workmen's compensation — Appeal — Admissibility of evidence — Transcript of testimony at oral hearing and rehearing, including affidavits — Section 1465-91, General Code (109 O. L., 186) — Industrial Commission not bound by common law or statutory rules.
ERROR to the Court of Appeals of Jefferson county.
This is an action to reverse the Court of Appeals of Jefferson county. The facts incident to the controversy are as follows:
John O. Orwick, on April 28, 1926, was employed by the Pennsylvania-Ohio Power Light Company as a laborer; and while engaged in his employment he injured his knee by falling upon or striking it against several spikes which were driven into a plank upon which he was kneeling at a time he was engaged in the work of cleaning out certain boilers in the power house of the defendant company at Toronto, Ohio.
In July, 1926, Orwick filed an application with the Industrial Commission of Ohio for compensation. Defendant company was a self-insurer.
The Industrial Commission took jurisdiction of the case and began an investigation. Several affidavits were filed, and the commission ordered an oral hearing to be conducted in Steubenville. On December 7, 1926, said hearing took place. The entire transcript, including the testimony and the affidavits, is embodied in the record in the form of Plaintiff's Exhibit G.
The Industrial Commission denied Orwick compensation. Application for rehearing was filed, and on September 12, 1927, such rehearing took place, the parties, with their witnesses, going before the referee of the Industrial Commission, and giving their testimony. A transcript of this hearing appears in the record as Plaintiff's Exhibit H.
The Industrial Commission again denied Orwick compensation, and an appeal was prosecuted to the court of common pleas of Jefferson county. Trial was had which resulted in a verdict for plaintiff Orwick. For various errors occurring at the trial, motion for a new trial was sustained, and a second trial was had on April 23, 1927, which again resulted in a verdict in favor of Orwick. Motion for new trial was denied and error was prosecuted to the Court of Appeals, which court affirmed the judgment of the court of common pleas. Upon motion to certify, the case was admitted to this court for review.
Messrs. Harrington, De Ford, Huxley Smith, and Mr. Carl F. Allebaugh, for plaintiff in error. Messrs. Moreland Moreland, for defendant in error.
It is urged that this judgment should be reversed because of the admission of evidence claimed to be incompetent before the Industrial Commission, and afterwards read to the jury from the transcript presented to the court of common pleas upon trial upon appeal, as appears by Exhibits G and H.
An examination of the record herein fails to disclose prejudicial error to have intervened in such form that this court is justified in reversing the judgment of the Court of Appeals, which affirmed the judgment of the common pleas court.
It is provided in Section 1465-91, General Code (109 Ohio Laws, 186), that "Such commission shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided." In the light of such provision, and further because of the admissions shown in the record, together with the state of the record in which the claimed incompetent testimony is presented, we find no prejudicial error in the instant case. It therefore becomes our duty to affirm the judgment of the Court of Appeals.
Judgment affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS, DAY and ALLEN, JJ., concur.