Summary
instructing a jury that it may find in favor of the "defendants," including the claimant's employer, was incorrect because it was irrelevant to the only question in the case, which was whether the claimant was entitled to participate in the State Insurance Fund
Summary of this case from Cromer v. Children's Hosp. Med. Ctr. of AkronOpinion
No. 68-358
Decided May 7, 1969.
Workmen's compensation — Death claim disallowed by commission — Appeal by claimant to Common Pleas Court — Section 4123.519, Revised Code — Parties — Employer party defendant — Not required to contest action — Issue presented — Charge to jury — Burden of proof.
APPEAL from the Court of Appeals for Stark County.
Plaintiff, Rose Masci, the appellee herein, applied for death benefits under the workmen's compensation law, claiming that her husband's death occurred as a result of an injury received in the course of and arising out of his employment by the Canton Pattern and Foundry Company, a contributor to the State Insurance Fund. Such claim was disallowed by the administrator, and upon appeal to the Canton Regional Board of Review, that agency affirmed the order of the administrator.
In her petition, upon appeal to the Court of Common Pleas of Stark County under Section 4123.519, Revised Code, plaintiff named the administrator and the Canton Pattern and Foundry Company as defendants, both in the caption of the petition and in the body thereof. The petition was met by answer of the administrator, which, after certain formal admissions, closed with a general denial and a prayer for dismissal of the petition.
The case was tried before the court and a jury, and resulted in a verdict for the named defendants upon a finding "that the plaintiff, Rose Masci, is not entitled to participate under the Workmen's Compensation Act of the state of Ohio."
Before argument, at the request of the administrator and over objection, the court gave the jury several special instructions respecting the burden of proof resting upon plaintiff and advising the jury, in effect, that if such burden was not met, its verdict should be for the defendants, "the Administrator of the Bureau of Workmen's Compensation and the Canton Pattern and Foundry Company."
Upon appeal on questions of law to the Court of Appeals, that court found that it was prejudicial error on the part of the trial court to allow the inclusion of the Canton Pattern and Foundry Company in the special instructions and in the verdict form. The judgment below was reversed, and the cause was remanded to the Court of Common Pleas for further proceedings.
The cause finds lodgment in this court for decision on the merits pursuant to the allowance of a motion to certify the record.
Mr. John F. Locke and Miss Mary J. Cusack, for appellee and cross-appellant.
Mr. Paul W. Brown, attorney general, Mr. Walter J. Howdyshell and Mr. William M. Culbert, for appellant and cross-appellee.
Of course, in a case of this sort upon appeal to the Court of Common Pleas under Section 4123.519, Revised Code, the only issue for determination by the trier of the facts is whether, under the evidence presented, the plaintiff-claimant is entitled to participate in the State Insurance Fund.
Under that section, the administrator, the claimant and the employer shall be parties to the appeal. Consequently, there is no secret as to the identity of the employer as one against whom the appeal is directed. The fact that the employer does not file an answer or appear and contest the claim is inconsequential. Taylor v. Keller, 6 Ohio St.2d 9, 215 N.E.2d 597.
However, the employer is definitely in the case as a defendant and that fact is apparent to all concerned.
Moreover, it would seem only natural that an affected employer, as a contributor to the State Insurance Fund, is interested in seeing that such fund is protected from improper and unlawful invasion, and that consideration no doubt motivated the General Assembly in making the employer a defendant in an appeal of a workmen's compensation case, such as the instant one.
Although we do not commend the form of the special instructions given or the form of the verdict submitted to the jury, the court in its general charge advised the jury that the sole issue for it to decide was whether plaintiff was entitled to participate in the fund, and the verdict form submitted and the jury's verdict returned thereon corresponded with the court's instructions.
Conceding, in light of the ultimate issue for determination, that the special instructions and the verdict form were objectionable, their submission was not of such gravity as to constitute prejudicial error.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER, HERBERT and DUNCAN, JJ., concur.