Opinion
No. 30694
Decided March 10, 1948.
Workmen's compensation — Additional award for violation of specific requirement — Section 35, Article II, Constitution — General course of conduct, duties or obligations, not contemplated.
The term, "specific requirement," as used in Section 35, Article II of the Constitution of Ohio, does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission, and which are of a character plainly to apprise an employer of his legal obligations toward his employees.
IN MANDAMUS.
This is an action in mandamus brought in this court. In his petition, the relator alleges that on June 18, 1942, while employed by a contributor to the state insurance fund, he was injured in the course of his employment by being struck in the face by a part of a cracked and defective die which part, by reason of the defective condition of the die, flew out of a press at which he was working. It is alleged further that the cracked and defective condition of the die was known to the employer but not to the relator; and that the injury sustained was due to a violation by the employer of specific safety requirements as set forth in Sections 8 and 13 of Bulletin No. 207 of the Industrial Commission and the Department of Industrial Relations and to a violation of Sections 871-15 and 871-16, General Code.
The petition alleges further that relator duly filed with the Industrial Commission an application for an additional award of compensation based on the violation by the employer of specific safety requirements, but that such application was denied.
In the prayer of his petition, the relator asks that a writ of mandamus issue directing the Industrial Commission to find that Sections 8 and 13 of the bulletin mentioned constitute specific safety requirements applicable to relator's injury, and that such injury resulted from a violation of such specific safety requirements; and asks that the commission be directed to enter an award in favor of relator for an amount within the limits provided by Section 35, Article II of the Constitution of Ohio.
Answering, the Industrial Commission admits the occurrence of an accidental injury to the relator in the course of his employment by a contributor to the state insurance fund, the filing by the relator of an application for an additional award of compensation, and that such application was denied. After a general denial, the answer avers that the petition does not state facts sufficient to constitute a cause of action.
Messrs. Woodle Wachtel, for relator.
Mr. Hugh S. Jenkins, attorney general, Mr. C.G.L. Yearick and Mr. R. Brooke Alloway, for respondent.
That part of Section 35, Article II of the Constitution, which is applicable here, is as follows:
"Such board [the Industrial Commission] shall have full power and authority to hear and determine whether or not an injury * * * resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final * * *. When it is found, upon hearing, that an injury resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury * * *, and paid in like manner as other awards * * *."
Both Sections 8 and 13 in the bulletin referred to appear under the heading, "General Safety Requirements."
Section 8 reads:
"Employees shall report to their employer or his authorized agent the existence of any unsafe equipment or any other hazard which may come to their knowledge and where such unsafe equipment or hazard is found to be a violation of this code, steps to correct the same shall be taken."
Section 13 recites:
"Machines and presses shall be placed upon substantial foundations, floor or other supports and should, when necessary, be firmly secured in place to prevent moving or shifting."
Sections 871-15 and 871-16, General Code, provide in general terms that employers shall provide their employees with a safe place to work and shall do those things which may be reasonably necessary to protect the life, health, safety and welfare of such employees.
Do the quoted rules of the Industrial Commission and the Department of Industrial Relations, considered in connection with Sections 871-15 and 871-16, General Code, constitute "specific safety requirements," as claimed by the relator?
As ordinarily understood, a "specific requirement" is one which demands that some particular and definite act or thing be done. By several of its decisions, this court is committed to the principle that the term, "specific requirement," as used in Section 35, Article II of the Constitution, does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders adopted and promulgated by the Industrial Commission, and which are of a character plainly to apprise an employer of his legal obligations toward his employees. State, ex rel. Rae, v. Industrial Commission, 136 Ohio St. 168, 24 N.E.2d 594; State, ex rel. Davidson, v. Blake et al., Industrial Commission, 145 Ohio St. 102, 60 N.E.2d 664.
Before this court could properly do anything for the relator in this mandamus action, it would have to find, first, that some specific requirement contained in the statutes of Ohio or in a rule or order of the Industrial Commission had been violated by relator's employer and, second, that the Industrial Commission had failed to recognize and apply such specific requirement in relator's favor.
The rules and statutes relied on by relator are patently general in nature. This court would certainly be overstepping its prerogatives by directing the Industrial Commission to interpret such rules and statutes as being specific and to apply them in such a way as to give relator the additional compensation award which he would like to have.
The General Assembly and the Industrial Commission are vested with the power and authority to adopt and promulgate "specific requirements" for the greater protection of employees in the performance of their work. If these agencies have failed to act in an adequate manner, an appeal to them would doubtless be in order.
Without prolonging this opinion, we conclude that the relator is not entitled to the writ prayed for and the same is, therefore, denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, SOHNGEN and STEWART, JJ., concur.
TURNER, J., concurs in the judgment.