Opinion
No. 24120
Decided December 13, 1933.
Workmen's compensation — Additional compensation for violation of specific requirement — Section 35, Article II, Constitution — Mandamus to compel Industrial Commission to make allowance — Showing necessary that finding constituted abuse of discretion.
In an action in mandamus, to compel the Industrial Commission to make an allowance of additional compensation under the terms of Section 35 of Article II of the Constitution of Ohio, the relator, in Order to succeed, must show that the finding of the commission against him amounted to an abuse of discretion.
IN MANDAMUS.
This is an original action in mandamus against the Industrial Commission of Ohio.
The relator, Louis Stuber, alleges that he was employed in the bindery department of the E.H. Sell Company, of Columbus, Ohio, a contributor to the Workmen's Compensation Fund; that in the course of his employment he fell into the shaft of an elevator maintained by said company in connection with its bindery, and thereby sustained severe injuries; that the Industrial Commission, upon his application, awarded him compensation, at first for temporary total, and later for temporary partial, disability. He then filed an application with the Industrial Commission for an allowance of additional compensation, under the terms of Section 35 of Article II of the Constitution of Ohio, and this latter application was denied. He seeks in this action an order compelling the Industrial Commission to make the additional allowance.
In his petition, the relator alleges that the Sell Company violated the following specific requirements for the protection of the lives, health and safety of its employees:
1. Section 1027, paragraph 4, General Code, which reads as follows:
"They shall case in all unused openings of elevators and elevator shafts and place automatic gates or floor doors on each floor where entrance to the elevator carriage is obtained. They shall keep such gates or doors in good repair and examine frequently and keep in sound condition the ropes, gearing and other parts of elevators."
2. Section 1027, paragraph 6, General Code, which reads as follows:
"They shall light the hallways, rooms, approaches to rooms, basements and other places wherein sufficient daylight is not obtainable."
3. Section 871-15, General Code, which reads as follows:
"Every employer shall furnish employment which shall be safe for the employes therein, and shall furnish a place of employment which shall be safe for the employes therein, and for frequenters thereof, and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes, follow and obey orders and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employes and frequenters."
4. Section 871-16, General Code, which reads as follows:
"No employer shall require, permit or suffer any employe to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety and welfare of such employes or frequenters; and no such employer or other person shall hereafter construct or occupy or maintain any place of employment that is not safe."
5. Specific Requirements for Elevators, adopted by the Industrial Commission, page 179:
"The cars of all elevators shall be properly lighted."
6. Specific Requirements for Elevators, adopted by the Industrial Commission, page 186:
"All freight elevators shall be equipped at each landing with self-closing gates not less than 5 1/2 feet in height, except at top landing where such gates must be not less than 3 1/2 feet in height."
It appears by the record that the elevator cab which relator intended to board was not then at his floor, but was higher up in the shaft; that the elevator gate was up and open and stuck in its grooves when the accident occurred; that the approach to the elevator was not lighted, and the bulb was out of the light socket in the corridor near the elevator gate. There was no lamp in the elevator cab itself.
Relator claims that the Sell Company failed properly to inspect the elevator gate, and to keep it greased, and failed to provide proper lights in the corridor and in the elevator cab.
The respondent claims that the relator was not an ordinary employee, but a superior in charge of this elevator, and that he should have seen to its condition and to the installment of the light bulbs which were supplied to him. The record contains evidence in support of the contentions of both sides.
Upon consideration of the evidence, the commission denied the relator's application for additional compensation. Application for reconsideration was also denied by the commission.
Mr. Kenneth Howell and Messrs. Cowan, Adams Adams, for relator.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
The discretion of the Industrial Commission cannot be controlled by mandamus.
Section 35 of Article II of the Constitution of Ohio provides in part:
"Such board [Industrial Commission] shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final * * *."
The commission having found against him, the relator, to succeed in this court, must show that the finding of the commission amounted to an abuse of discretion.
Upon consideration of the entire record, we cannot say that there was an abuse of discretion. In our opinion, there was evidence upon which the commission's finding might properly rest, and in this circumstance the determination of the commission becomes final. Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484.
Whether there was a light in the elevator cab itself becomes of little moment in this case when it is remembered that the cab was not at the floor from which relator fell, but was then at some upper floor of the building. Had it contained a light, the result could hardly have been different.
There was conflict in the evidence as go whether the relator or some other had the duty of keeping proper bulbs in the sockets in the corridor approaching the elevator shaft. There was evidence that the relator was charged with that duty, and that the bulbs were supplied and on hand at the time of the accident. The commission having found as it did, we assume that this was so. There was, therefore, no breach of a specific requirement in this respect.
Neither was there a breach of the requirement to incase the elevator shaft and to equip it with automatic gates. Relator does not deny that such equipment was in place. His claim is that, through lack of attention, the gate failed to work. He makes no claim, however, of mechanical disrepair, but apparently relies upon a statement in the record that the grooves were last greased some four months before. It appears, however, that the gates were working well the afternoon previous to the accident, and there is evidence tending to show that it was the relator's duty to advise the company if the elevator was not in good condition. We cannot say as a matter of law that failure to grease for four months was a violation of a specific requirement. We find no abuse of discretion in this respect.
There remains only the contention that the company was guilty of violation of Sections 871-15 and 871-16, General Code. The controversy concerning general as opposed to specific requirements occupied the attention of this court before the language of Section 35, Article II, of the Ohio Constitution was amended in 1923 so as to substitute the words "specific requirement" for the words "lawful requirement." American Woodenware Mfg. Co. v. Schorling, 96 Ohio St. 305, 117 N.E. 366, Ann. Cas., 1918D, 318; Acklin Stamping Co. v. Kutz, 98 Ohio St. 61, 120 N.E. 229, 14 A. L. R., 812; Patten v. Aluminum Castings Co., 105 Ohio St. 1, 136 N.E. 426; Page Dairy Co. v. Affield, 105 Ohio St. 645, 138 N.E. 926; Ohio Automatic Sprinkler Co. v. Fender, 108 Ohio St. 149; 141 N.E. 269.
So far as this case is concerned, that amendment determines the controversy. In our opinion Sections 871-15 and 871-16, General Code, do not set up specific requirements, and are therefore not vital to the question before us.
For the foregoing reasons, the record fails, in our opinion, to disclose that the commission abused its discretion, and the writ asked for by the relator is denied.
Writ denied.
WEYGANDT, C.J., STEPHENSON, JONES and ZIMMERMAN, JJ., concur.
ALLEN, J., concurs in the judgment.
MATTHIAS, J., not participating.