Decided May 31, 1933.
Workmen's compensation — Employe's cause of action accrues when injured — Dependent's cause of action accrues when employe dies from injuries — Such causes of action are separate and independent — Appeal — Industrial Commission record in employe's proceeding not competent evidence in dependent's proceeding.
1. The cause of action of an injured employe accrues at the time he receives an injury in the course of his employment, and the cause of action of a dependent of a killed employe accrues at the time of the death of such employe from an injury received in the course of his employment. ( Industrial Commission v. Kamrath, 118 Ohio St. 1, approved and followed.)
2. Such causes of action are separate and independent, neither being dependent upon nor affected by the determination of the other.
3. The record of the Industrial Commission, showing its finding and order in a proceeding instituted by a claimant for compensation for injuries sustained, is not competent evidence in a subsequent action by the dependents of such former claimant, wherein they seek compensation for his death.
ERROR to the Court of Appeals of Franklin county.
Myrtle Davis filed a claim with the State Industrial Commission for compensation on account of the death of her husband, Curtis Davis, an employe of the Columbus Railway Power Light Company, his position being that of a conductor on one of its cars. Said company complied with the provisions of the Workmen's Compensation Law. The claim was rejected by the Industrial Commission. Thereupon claimant filed her appeal in the court of common pleas of Franklin county.
The petition, following averments that said Curtis Davis on December 25, 1926, when about to set a switch in the tracks over which street cars were operating, was struck by an automobile and received certain specified injuries from which he died April 14, 1928, contained the following averment: "This plaintiff says, further, that during his lifetime, the said Curtis Davis filed a claim with this defendant asking for compensation on account of disability suffered by him as a result of the injuries above described, and that this defendant during the lifetime of the said Curtis Davis found that the said Curtis Davis was injured in the course of his employment with The Columbus Railway Power and Light Company, as hereinbefore described, and awarded him compensation up to and including the thirteenth day of September, 1927."
On motion of the Industrial Commission the paragraph above quoted was stricken from the petition and upon the trial the court rejected evidence tendered in support of the allegations contained in that paragraph. A verdict in behalf of defendant was returned by the jury, and judgment was accordingly rendered by the court. Upon proceeding in error the Court of Appeals reversed the judgment for error in refusing "to admit in evidence the findings and award of the Industrial Commission on the application filed by Curtis Davis and the Industrial Commission's subsequent allowance of compensation and expenses to Curtis Davis." Upon the motion the record was ordered certified to this court for review.
Mr. John W. Bricker, attorney general, Mr. R.R. Zurmehly and Mr. Joseph E. Bowman, for plaintiff in error.
Mr. Stanley S. Stewart, Mr. Kenneth Little and Mr. Wm. H. Meyers, for defendant in error.
The legal question presented is within a very narrow compass. It is whether the record of the Industrial Commission, showing its finding and order for compensation for injuries sustained by a claimant, may be pleaded and introduced in evidence in a subsequent proceeding by the dependents of such former claimant wherein they seek compensation for his death.
The trial court answered that question in the negative, and rejected the proffered evidence. The Court of Appeals held it was admissible. The theory upon which it was held to be competent seems to be that in each instance the Industrial Commission is the defendant, and having at one time found that the then claimant was injured in the course of his employment, its finding is in some measure binding upon it in the proceeding subsequently instituted by the dependents. The effect to be accorded such evidence if admitted, however, is concededly in doubt. Whether the commission is estopped entirely to deny the truth of the finding, or whether it then becomes incumbent upon the commission to show misrepresentation or fraud on the part of the claimant inducing such finding, or whether it is to be just thrown into the scales as evidence upon one of the necessary elements, was queried and left undetermined.
Although based upon the same injury, there were two successive causes of action. The first, being that of the injured employe, arises at the time he received an injury in the course of his employment, while the second, being the cause of action of a killed employe, accrues at the time the employe dies from an injury received in the course of his employment. Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470.
When the latter cause of action accrues the dependents' claim may be presented to the Industrial Commission for determination, and if denied upon rehearing an appeal may be taken to the court of common pleas as provided in Section 1465-90, General Code. The two actions are not in the same right. The claims are as distinct and the cases as separate as those involved in the case of Mahoning Valley Ry. Co. v. Van Alstine, Admr., 77 Ohio St. 395, 83 N.E. 601, 14 L.R.A. (N.S.), 893. It was there held that the prosecution to final judgment and satisfaction by a personal representative of a suit for damages for personal injuries begun by the deceased in his lifetime did not in any wise affect the right of the same personal representative to maintain an action under the statute in behalf of the next of kin therein enumerated for damages for the death resulting from the same injury.
The same principle was involved in the case of St. Louis, Iron Mountain Southern Ry. Co. v. Craft, 237 U.S. 648, 35 S.Ct., 704, 59 L.Ed., 1160, in which the Van Alstine case, supra, is cited. In the course of the opinion it is said, at page 658: "Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong."
The claims being distinct and prosecuted in separate actions, it is difficult to find a reason for holding that the record in the one case, or the adjudication by the commission therein, which would not be applicable in purely court actions, should be introduced in the other. Frequently several suits for damages arise out of the same occurrence, but no one would contend that the finding and judgment in one of such cases would be competent to go to the jury for any purpose in the trial of any other such case. Surely such finding in favor of the former claimant for compensation is not admissible in the subsequent proceedings, upon the ground of estoppel. The Industrial Commission is an administrative board, and its powers and jurisdiction in each case are continuing (Section 1465-86, General Code; State, ex rel. Crawford, Exr., v. Industrial Commission, 110 Ohio St. 271, 143 N.E. 574), and its findings and order are subject to reconsideration and modification. The mere fact that there had been no change or modification of its order relative to compensation does not serve to cast the burden of proof upon the commission, or preclude a different finding subsequently in another case. The burden in each case is upon the claimant to present facts essential to warrant an award of compensation.
It is proposed to apply the doctrine of res judicata in such proceedings by permitting the pleading and proof of the result in one case as a bar to the prosecution of another. If such doctrine may be applied to sustain a claim it could as well be done to prevent or bar a claim. Consistency would require the application of the rule in the latter situation if it is to be applied in the former. There is no good reason for the admission of the finding of the commission made in another case when favorable to the claimant that would not apply if the finding of the commission were adverse to the claimant. The application of such rule would in many instances result injuriously to dependents of injured workmen.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON and JONES, JJ., concur.