Opinion
No. 28865
Decided May 13, 1942.
Workmen's compensation — Appeal from Industrial Commission order disallowing claim on jurisdictional grounds — Error to dismiss appeal on ground wrong party defendant sued — Claimant in original application named employing agency as employer — Commission denied claimant's application to amend to show real employer — Court dismissed appeal without considering transcript of rehearing before commission.
Where an action has been brought on appeal from an order of the Industrial Commission disallowing plaintiff's claim for compensation on jurisdictional grounds, and the pleadings show that the plaintiff filed his claim against one party, not amenable to the Workmen's Compensation Act, as being his employer at the time he was injured, but later and more than two years after his injury discovered that the party named in his application as his employer was in fact an employing agency which employed him to work for another party amenable to the compensation act in whose employ in truth and fact he received his injuries, whereupon he made application to amend his original application to correspond with such facts, which application to amend was denied and his claim disallowed on the ground that it was filed against the wrong party, it is error on the part of the trial court, on motion, without giving consideration to the transcript of the record made on rehearing of the claim before the commission, to dismiss the appeal on the ground that it appeared from the pleadings that the plaintiff had sued the wrong party defendant.
APPEAL from the Court of Appeals of Cuyahoga county.
The issue in this case arises on the pleadings filed and proceedings had in the Common Pleas Court.
The petition, making the Industrial Commission the sole defendant, with summons properly served, alleges that on February 16, 1935, the plaintiff was an employee of the L. N. Gross Company, a corporation, then and there employing more than five persons in its factory; that this corporation was a subscriber to the Ohio workmen's compensation fund; and that this action comes into the Common Pleas Court on appeal from an order of the Industrial Commission denying plaintiff the right to participate in that fund.
The plaintiff further alleges that while so employed on February 16, 1935, he was attacked and beaten by striking employees of such company, as a result of which he suffered a cerebral concussion and other severe injuries which are permanent in nature, and that he has a compensable permanent disability.
The petition further alleges that on or about February 11, 1937, and within two years from the sustaining of such injuries, plaintiff filed his application for compensation naming the Corporation Service Bureau, Inc., as his employer; that on December 7, 1937, the commission made an order disallowing the claim for the reason that the proof then of record failed to show that he, as claimant, was an employee of the Corporation Service Bureau, Inc. (admitted to be the party which procured plaintiff to work in the L. N. Gross Company factory), and for the reason that the proof failed to show that Corporation Service Bureau, Inc., was amenable to the Workmen's Compensation Act.
The petition further alleges that on or about December 30, 1937, he filed his application for rehearing which was allowed; and that on rehearing on April 24, 1939, the commission denied plaintiff's claim on the ground that the proof failed to show that claimant at the time of receiving his injuries was an employee of the Corporation Service Bureau, Inc., and that such company was amenable to the compensation law.
The petition further alleges that plaintiff was employed by one Ralph Smith, an individual who made a business of furnishing employers with help during labor troubles; that Smith was the sole owner, manager and operator of an agency known as the Corporation Service Bureau, Inc., which was acting for and on behalf of the L. N. Gross Company, a corporation, as its agent to furnish workers to meet the labor requirements in conducting the business of the L. N. Gross Company, which was, at that time, a subscriber to the workmen's compensation fund of this state; and that at the same time plaintiff, as such employee, was subject to all the provisions of such act, including the right to compensation if injured in the course of his employment. The prayer of the petition is that plaintiff's right to participate in the state insurance fund be established.
To plaintiff's petition an answer was filed by the Industrial Commission in which it admits that the L. N. Gross Company did on February 16, 1935, employ more than five persons and was a subscriber to the insurance fund; admits the attack upon and injuries to the plaintiff; admits that on February 11, 1937, plaintiff filed an application for compensation under Section 1465-74, General Code, and that compensation was denied as alleged, but denies every other material allegation of the petition and especially denies that plaintiff was, on February 16, 1935, an employee of the L. N. Gross Company within the compensation act, that plaintiff's injuries were received during and in the course of employment by that company, and that plaintiff was permanently and totally disabled.
For a second defense, defendant alleges, in substance, that at no time within two years of February 16, 1935, the date of plaintiff's injury, did plaintiff file an application naming the L. N. Gross Company as his employer or claiming that he was injured during the course of or within the scope of his employment by or with the L. N. Gross Company, but, on the contrary, claimed that his injury was received by him while in the service of the Corporation Service Bureau, Inc.
For a third defense, defendant alleges that this action does not comply with Section 1465-90, General Code, in that it is not an appeal from a disallowance on rehearing of a claim filed by the plaintiff, no claim, as alleged, covering an injury to plaintiff while employed by the L. N. Gross Company, having ever been filed with the defendant, and that the defendant has never had an opportunity to pass upon any such application described in the petition.
Plaintiff filed a reply to the answer in which he alleged that he filed a claim with the commission as required by law invoking the jurisdiction of the commission whose statutory duty it was to ascertain who was the bona fide legal employer of the plaintiff at the time he was injured; that if the Corporation Service Bureau, Inc., was a non-complying independent contractor, was the employer of the plaintiff when injured, and as such independent contractor was employed by the L. N. Gross Company, a corporation, which was amenable to the act and a subscriber and contributor to the insurance fund, under the provisions of Section 1465-61, General Code, it was the duty of the commission to consider plaintiff as an employee of the L. N. Gross Company; that at the time of the presentation of the original application to the commission for compensation plaintiff did not know that the Corporation Service Bureau, Inc., was the secret agent of the L. N. Gross Company, and that he was, in fact, an employee of the L. N. Gross Company, a subscriber to the insurance fund; that he did not learn the facts in that regard until April 30, 1937, at which time he filed application with the commission to amend his original application so as to show that he was employed by the L. N. Gross Company instead of the Corporation Service Bureau, Inc., at the time of his injury, but that his application was denied; that during the rehearing on his application he renewed his motion to amend his original application so as to show the facts as to his real employer, but that his application to amend was again denied; and that by reason of these facts, the defendant should be estopped to allege and claim that it had no opportunity to pass upon the application of plaintiff for compensation as an injured employee of the L. N. Gross Company. In conclusion, plaintiff alleges gross abuse of discretion on the part of the commission in the orders and findings made by it which, plaintiff alleges, are not supported by the testimony but are, in fact, contrary to the weight of the evidence and the law in the promises.
Defendant filed a motion in the Common Pleas Court to dismiss the action for the reason that it was filed against the wrong party defendant. The plaintiff filed a motion to require the defendant, the Industrial Commission, to prepare and certify to the court, as a part of the record, a transcript of the following records and proceedings before the commission, to wit: Record and transcript of the rehearing and subsequent proceedings; plaintiff's application to amend his original application for compensation so as to show that the L. N. Gross Company was the employer of the plaintiff instead of the Corporation Service Bureau, Inc.; and the order of the commission denying that application.
The Common Pleas Court sustained the motion of the defendant and overruled the motion of the plaintiff. Motion for new trial was filed and overruled, whereupon plaintiff perfected his appeal to the Court of Appeals on questions of law. The Court of Appeals affirmed the judgment of the trial court by a divided court. The case is now in this court on appeal by reason of the allowance of a motion to certify the record for review.
Mr. Frank A. Green, Mr. Hubert J. McCaffery and Mr. Edward J. O'Connor, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for appellee.
The questions of law presented by the record in this case may be stated as follows: (1) Do the pleadings show that the action was filed against the wrong party defendant as held by the trial court in sustaining the motion of the defendant to dismiss the appeal? (2) On appeal, on the issue as to whether an injured workman was an employee of an employer complying with the Workmen's Compensation Act, is such appellant, as a matter of right, entitled to have the trial court hear and determine this issue of fact from the transcript of testimony taken on rehearing? (3) Does the trial court in an action on appeal from a denial of a compensation claim by the Industrial Commission on a jurisdictional ground, have jurisdiction and power on good cause shown to require the commission to grant further hearings as upon rehearing, and to order the commission to amend or revise the transcript of the record on rehearing so as to show correctly the proceedings on rehearing of claims pending before it?
This action was brought in the Common Pleas Court on appeal from a final order of the Industrial Commission on rehearing denying the claim of the plaintiff. This jurisdiction is granted by Section 1465-90, General Code, which provides, among ot her things, that "If the claimant is seeking compensation from the state insurance fund, the defendant in such action shall be the Industrial Commission and summons shall be issued to the Industrial Commission and also to the Attorney General." The petition alleges that the plaintiff was an employee of the L. N. Gross Company, an employer of more than five persons and a subscriber to the workmen's compensation insurance fund; that he was employed by the Corporation Service Bureau, Inc., as agent for and on behalf of the L. N. Gross Company; that he was, in fact, an employee of the latter company and while so employed was injured; that within two years from the date of his injury he filed his claim with the commission; and that the commission disallowed his claim "for the reason that proof of record fails to establish that claimant at the time of receiving his injuries was an employee of the Corporation Service Bureau, Inc., within the meaning of the workmen's compensation law * * *." These allegations presented questions of fact which, on appeal, must be determined by the trial court.
The evidence contained in the transcript of the record on rehearing was not yet before the court and the order of the court in dismissing the action "for the reason that said cause has been filed against the wrong party defendant" was premature. Perchance, the transcript of the record on rehearing may show sufficient facts to support the allegations of plaintiff's petition. It was so claimed by counsel for plaintiff on oral argument of this case. If it should appear that the relationship of the Corporation Service Bureau, Inc., to the L. N. Gross Company was that of agent, and further that the former was not amenable to the Workmen's Compensation Act, or having five or more employees failed to comply with the act, the evidence on rehearing before the commission may disclose that the plaintiff is entitled to be considered as an employee of the L. N. Gross Company instead of the Corporation Service Bureau, Inc.
Again, if the evidence should show that the Corporation Service Bureau, Inc., was an agent in employing the plaintiff for the L. N. Gross Company, the fact that the application in the first instance named the former as plaintiff's employer, should not be fatal to his claim. The facts, and not technicalities, should prevail.
The facts presented and the result reached in the case of State, ex rel. Thompson, v. Industrial Commission, 121 Ohio St. 17, 166 N.E. 806, have a bearing on the solution of the questions presented in this case. In that case the claimant, Thompson, filed an application for compensation naming as his employer, one Bonney, who was superintendent of the shop or factory of the real employer, Bergman. In an action to enforce the award against Bonney, he defended on the ground that he was not, in fact, the injured employee's employer and prevailed in such defense. Thompson, the injured employee, then brought an action in mandamus to compel the commission to pay the award out of the surplus fund created by virtue of Section 1465-54, General Code. Judge Jones of this court, in the opinion in that case, said:
"It is conceded by the demurrer that the relator was an employee of an employer employing five or more workmen, and the only controversy seems to be whether he was the employee of Bergman or Bonney. One or the other was Thompson's employer, and one or the other did employ five or more workmen. Bergman and Bonney may battledore that issue between themselves, but their quarrel does not concern the injured workmen, who was entitled to compensation if employed by either."
From the answer in this case it appears that the commission denied the application of the plaintiff to amend his original application so as to show the L. N. Gross Company was his real employer, for the reason that the application was made more than two years after the date of plaintiff's injury and that his claim was barred. In the view of this court, such an amendment would not so change the claim or the cause of action as to prevent such amendment after the two-year period had expired. Such amendment would not affect new parties or change the nature or character of the claim. The action is primarily against the fund and not the parties insured under or protected by it. The commission, as defendant in the action, represents such parties as it does in all cases of allowance or disallowance of claims, and in defending the disallowance of claims on appeal. Kaiser v. Industrial Commission, 136 Ohio St. 440, 26 N.E.2d 449. Judge Williams of this court, in the opinion in the case just cited, said:
"In order that complete justice might be meted out to every claimant for compensation broad authority was given to the commission. When that body once assumes jurisdiction of a claim for injury of an employee in the course of his employment, that jurisdiction is continuing with power to make such modification of its former findings from time to time as it may deem justified subject only to the ten-year limitation prescribed in Section 1465-86, General Code. Under the application of this principle it is established that a supplemental application or application for modification of an award to secure compensation for a subsequently developing disability may be filed after the expiration of the two-year period."
The facts alleged in the petition disclose a compensable injury (see Gregory v. Industrial Commission, 129 Ohio St. 365, 195 N.E. 699), and the trial court erred in sustaining defendant's motion to dismiss the action.
Did the court err in overruling the motion of the plaintiff to require the commission to certify, as a part of the transcript of the rehearing, certain proceedings after the rehearing proper had been completed?
The evidence contained in the transcript apparently was not before the court when this motion was made, and is not now a part of the record. Perhaps the record already certified is sufficient. At any rate the motion, in the opinion of the court, may have been premature. If, however, on examination of the transcript, it appears that some error, omission, or mistake has been made by the commission in the preparation of the transcript, undoubtedly the Common Pleas Court, as the appellate court, would have jurisdiction and power in its discretion to order a correction of the record and transcript of the record to preserve the legal rights of the parties. Otherwise, the court in the trial of such appeals, being confined to the transcript of the record on rehearing, would have no opportunity to correct such errors, and reviewing courts would, likewise, be helpless to correct them on review. However, in view of the fact that the motion of the plaintiff may have been premature, the record of rehearing not having been brought to the attention of the court at the time of ruling upon the motion, it was not error for the court to overrule it.
From the record it appears to the court that plaintiff has not had a hearing on the real merits, of his claim, and in view of the requirement of the compensation act that the law granting compensation to injured workmen and the procedure on the prosecution of claims thereunder shall be liberally construed in favor of the claimant, the judgment should be reversed and the case remanded.
The judgments of the Court of Appeals and that of the Common Pleas Court are reversed and this cause is remanded to the Common Pleas Court for further proceedings according to law.
Judgment reversed and cause remanded.
WEYGANDT, C.J., WILLIAMS, MATTHIAS and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.