Opinion
No. 27642
Decided December 20, 1939.
Workmen's compensation — Additional award for violation of specific requirement — Section 35, Article II, Constitution — Duty to supply timbers, etc., to men employed in tunnel — Section 87, Industrial Commission Code of Specific Safety Requirements — Specific requirement not imposed where employer may exercise judgment — Mandamus to compel Industrial Commission to deny additional award.
IN MANDAMUS.
This is an action in mandamus originating in this court, wherein the relator prays for a writ ordering the Industrial Commission of Ohio to deny the application made by the dependents of Robert Holcomb, an employee killed while in the employment of the relator, in which they seek an additional award by reason of the alleged violation by the employer of a specific safety requirement previously adopted by the respondent, the Industrial Commission of Ohio.
The relator alleges that on the 29th day of September, 1934, he was engaged under a contract with the city of Columbus, Ohio, in constructing an intercepting sewer in a tunnel under and parallel with Perry street in the above named city, when a cave-in occurred in the tunnel which caused fatal injuries to Robert Holcomb, an employee of the relator; that during the entire time of the construction he was a contributor to the State Insurance Fund, and that following the death of Robert Holcomb, his dependents made application for death benefits from the State Insurance Fund, and that the respondent granted the maximum award of $6,500.
Relator says that thereafter, on July 2, 1936, the dependents filed with the Industrial Commission an application for additional award for violation of a specific requirement, under Section 35, Article II of the Constitution of the state of Ohio, alleging that the relator was guilty of violating, among others, Section 87 of the Code of Specific Safety Requirements relating to building and construction work, adopted by the Industrial Commission February 14, 1931. Section 87 reads as follows:
"It shall be the duty of the operator to see that all men employed in the tunnel are supplied, at all times, with such timbers, other materials, equipment and supplies as are necessary to keep their working places in safe condition and to cause them to keep such place in a safe condition at all times."
Relator then alleges that the application was heard by the commission, that the commission found that the decedent's death was caused by the employer's violation of Section 87 of the Code of Specific Safety Requirements relating to building and construction work and that the employer failed to cause his men so employed in the tunnel to keep the same in a safe condition, and ordered an additional award to the dependents in an amount equal to 25 per cent of the regular compensation theretofore granted. This claim was then ordered referred to the auditing department for collection of the additional award from the employer.
Relator then says that he filed a motion for a rehearing and that this motion was, on the 9th day of March, 1939, denied.
Relator alleges that the orders of the respondent were unreasonable, arbitrary and unlawful, and constitute a gross abuse of discretion on the part of the respondent, the Industrial Commission of Ohio, in that Section 87 of the Code of Specific Safety Requirements relating to building and construction work proscribes a general course of conduct, and is not a specific requirement within the purview of Section 35 of Article II of the Constitution of the state of Ohio; and further, that the relator has no other adequate remedy at law in the premises.
To the petition of the relator, the respondent, the Industrial Commission of Ohio, has demurred, for the reason that the allegations of the petition are not sufficient to constitute a cause of action against the respondent.
The case is now before this court for a decision upon the demurrer.
Messrs. Arnold, Wright, Purpus Harlor, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
The sole question presented by the demurrer is whether Section 87 of the Code of Specific Safety Requirements relating to building and construction work, adopted by the Industrial Commission of Ohio, is a specific requirement within the meaning of Section 35, Article II of the Constitution of the state of Ohio.
Section 35, Article II of the Constitution of Ohio, reads, in part, as follows: "Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto. * * * Such board 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 employees, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final * * *."
It is settled in Ohio that a statute enacted by the General Assembly or orders by the Industrial Commission, which prescribe a general course of conduct, are not specific requirements within the meaning of the aforementioned constitutional provision. As was said in State, ex rel. Stuber, v. Industrial Commission, 127 Ohio St. 325, 188 N.E. 526: "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."
Interpreting the meaning of the term "lawful requirement," the court, in American Woodenware Mfg. Co. v. Schorling, 96 Ohio St. 305, at page 325 ( 117 N.E. 366, Ann. Cas. 1918D, 318), said: "We are convinced that the term 'lawful requirement,' as used in the constitutional amendment and the statutory provisions involved in this case, was not intended to and does not mean a general course of conduct, or those general duties and obligations of care and caution which flow from the relation of employer and employee, and which rest upon each member of the community for the protection of the others."
In Patten v. Aluminum Castings Co., 105 Ohio St. 1, 136 N.E. 426, the court defined the term "lawful requirement" as meaning "specific requirement," saying that "The term 'lawful requirement,' as used in Section 35, Article II of the Constitution, and in Section 1465-76, General Code, comprehends such lawful, specific and definite requirements or standard of conduct as would advise an employer of his legal obligations."
If we substitute the word "specific" for the word "lawful," we have a definition of the term "specific requirement."
What specific things did Section 87 require the employer to do? The section provides that "It shall be the duty of the operator to see that all men employed in the tunnel are supplied, at all times, with such timbers, other materials, equipment and supplies as are necessary * * *." What timber, material, equipment or supplies? Who is to determine the necessity? Obviously, determination is left to the judgment of the employer. The constitutional provision does not impose a penalty for an error in judgment committed by an employer, but it does provide a penalty for violation of a specific requirement. Section 87 does not impose a specific requirement but vests in the employer the power to exercise his judgment with respect to determining the question of necessity. The specific thing to be done is left to the judgment of the employer, as is also the method to be employed. Such a section cannot be said to be a specific requirement. It is the duty of the commission to prescribe such specific safety requirements as will forewarn the employer and establish a standard which he may follow. The section here involved is clearly not a "specific requirement."
In finding that the injuries to decedent, Robert Holcomb, were caused by a violation of a specific requirement, the Industrial Commission abused its discretion, to correct which a writ of mandamus will issue. See State, ex rel. Coen, v. Industrial Commission, 126 Ohio St. 550, 186 N.E. 398.
The demurrer of respondent is overruled, and respondent not desiring to plead further a writ of mandamus is allowed.
Writ allowed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.
Section 87, in the opinion of the writer, is sufficiently clear to advise the employer as to his duties. Manifestly it would be impossible for the Industrial Commission to specify the kind of timber or equipment to be used for all kinds of soil or material to be tunnelled.