From Casetext: Smarter Legal Research

Westenberger v. Indus. Comm

Supreme Court of Ohio
Mar 29, 1939
20 N.E.2d 252 (Ohio 1939)


No. 27320

Decided March 29, 1939.

Workmen's compensation — Award for death of partner-employee — Payment discontinued after amended statute declared unconstitutional — Section 1465-68, General Code — Duties of Industrial Commission ceased and rights of claimant terminated.

APPEAL from the Court of Appeals of Fairfield county.

Jesse L. Westenberger was a member of the partnership of O'Leary Westenberger, a contributor to the Workmen's Compensation Fund.

On December 30, 1933, while engaged in the partnership business and acting within the scope of the partnership, he sustained injuries which resulted in his death. His dependent wife filed an application for compensation and the Industrial Commission assumed jurisdiction of the claim and granted an award.

On November 20, 1936, the commission entered an order discontinuing payment for the reason that the decedent "was a member of the partnership named as the employer in said claim; [and] that, therefore, his dependents are not entitled to participate further in the Workmen's Compensation Fund." An application for rehearing was filed, a rehearing had and the claimant was denied the right to continue to participate in the fund.

The widow filed her petition in the Court of Common Pleas, alleging the foregoing facts. After a demurrer to the petition, challenging jurisdiction of the person and the subject-matter, had been overruled, the commission filed an answer, the second defense of which pleaded that by reason of the provisions of Section 1465-68, General Code, the court was without jurisdiction of the subject-matter. A jury was waived, the court found for the widow, a motion for new trial was overruled and judgment was entered finding that she was entitled to participate in the Workmen's Compensation Fund. On appeal on questions of law the Court of Appeals affirmed the judgment, without opinion, and a motion to certify the record was allowed by this court.

Messrs. Silbaugh Silbaugh and Messrs. Wardlaw, Gertner Armstrong, for appellee.

Mr. Herbert S. Duffy and Mr. T.J. Herbert, attorneys general, Mr. Eugene Carlin, Mr. C.L. Hawthorne and Mr. E.P. Felker, for appellant.

The Industrial Commission contends that, inasmuch as that part of Section 1465-68, General Code, which includes members of partnerships as employees within the provisions of the Workmen's Compensation Act, was declared unconstitutional by this court in the case of Goldberg v. Industrial Commission, 131 Ohio St. 399, 3 N.E.2d 364, the widow has no basis for an action for compensation.

Counsel for the widow contend that, having accepted premiums based upon the payroll which included the decedent's salary, the commission is estopped to deny the constitutional validity of the last paragraph of Section 1465-68, General Code.

We agree with counsel for both parties to this litigation that the question of estoppel was not before this court in the Goldberg case.

In 1925 the General Assembly amended Section 1465-68, General Code (111 Ohio Laws, 218), to include coverage of members of partnerships under certain circumstances. The Industrial Commission was thereafter compelled to accept premiums from partnerships and to pay for injury to or death of partner-employees. In 1936 this court declared unconstitutional the amended portion of Section 1465-68, General Code, and the commission was thereupon deprived of rights and duties under that amended section.

The rights of employees and their dependents in the Workmen's Compensation Law are not governed by common law, but are only such as may be conferred by the General Assembly. 42 Ohio Jurisprudence, page 575, Section 2; Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470; Bozzelli v. Industrial Commission, 122 Ohio St. 201, 171 N.E. 108.

When this court declared Section 1465-68, General Code, unconstitutional, the duties of the Industrial Commission ceased with reference to such partner-employee claims, and the rights of claimants likewise terminated.

Judgment reversed and final judgment for appellant.


Summaries of

Westenberger v. Indus. Comm

Supreme Court of Ohio
Mar 29, 1939
20 N.E.2d 252 (Ohio 1939)
Case details for

Westenberger v. Indus. Comm

Case Details


Court:Supreme Court of Ohio

Date published: Mar 29, 1939


20 N.E.2d 252 (Ohio 1939)
20 N.E.2d 252

Citing Cases

State ex rel. Ohio Presbyterian Ret. Servs., Inc. v. Indus. Comm'n of Ohio

{¶ 13} Compensation rights for injured workers are limited to those conferred by statute. Westenberger v.…

Schultz v. Admin., Bureau of Workers Comp

{¶ 21} It has long been determined in this state that "[t]he rights of employees and their dependents in the…