Opinion
No. 20901
Decided May 16, 1928.
Workmen's compensation — Appeal to common pleas court — Section 1465-90, General Code, 109 O. L., 296 — Pending proceedings — Section 26, General Code — Proceedings commenced by oral application of employ of self-insuring employer — Oral evidence in addition to industrial commission record, admissible.
1. An oral application for compensation, given by an injured employee to his self-insuring employer, which application is refused by his employer, constitutes the commencement of a "proceeding" sufficient to confer jurisdiction for a subsequent appeal from an adverse decision of the Industrial Commission.
2. Upon the trial of such cause in the court of common pleas upon appeal, oral evidence was admissible in addition to the record made before the Industrial Commission. Industrial Commission v. Hilshorst, 117 Ohio St. 337, 158 N.E. 748, approved and followed.
ERROR to the Court of Appeals of Cuyahoga county.
This is a proceeding to reverse the Court of Appeals of Cuyahoga county; the Court of Appeals of the First District sitting therein by designation. The facts incident to the case are as follows:
Ely A. Rebic was an employee of the W. S. Tyler Company, and, while working in such employment, on February 28, 1925, claims to have suffered an injury in the nature of an abdominal strain, resulting in a hernia, which subsequently required a surgical operation. The employee claims to have made an oral demand upon the employer for compensation on June 6, 1925. This demand was refused by the employer, and on September 4, 1925, he made formal application to the Industrial Commission of Ohio to require the W. S. Tyler Company, which was a self-insuring employer, to pay compensation to him according to law. Rebic made his claim under Section 1465-90, General Code (109 Ohio Laws, p. 296), as it existed prior to July 14, 1925. This section of the statute had been amended in 111 Ohio Laws, p. 227, which amendment had become effective on the above date, to wit, July 14, 1925. By this amendment it would have been necessary for Rebic to file an application for a rehearing after the denial by the Industrial Commission of his claim, and to submit evidence, at which rehearing objections might be made and exceptions taken, under the usual rules of evidence, under which procedure, in the event of an appeal to the common pleas court, the hearing would proceed upon the evidence so taken, and the court would rule upon the objections, the same as if testimony were being presented orally by witnesses. This procedure Rebic had not pursued, as this application for a rehearing after a denial of his claim, under Section 1465-90, General Code (109 Ohio Laws, p. 296), was not required; and Rebic's claim, in substance, is that, having received his injury and made his original application, although an oral one, to his self-insuring employer, for expenses and injury received, his case is controlled by the statute as it existed prior to the amendment which became effective July 14, 1925.
Upon prosecuting his appeal to the court of common pleas, after denial by the Industrial Commission, the case was tried to a jury, and a verdict rendered in favor of Rebic. Motion for new trial was filed and overruled, and judgment entered on the verdict. The employer then filed a petition in error in the Court of Appeals of Cuyahoga county, in which court the judgment of the common pleas court was affirmed. Error is now prosecuted to this court to reverse such judgment.
Messrs. Tolles, Hogsett Ginn, for plaintiff in error.
Mr. M.C. Harrison, for defendant in error.
The questions presented here are, first, whether the appeal from the denial of the claim of Rebic by the Industrial Commission was governed by Section 1465-90, General Code, as amended in 111 Ohio Laws, p. 227, effective July 14, 1925, or whether it is controlled by said section as it existed prior to said date; and, second, whether or not the employee had the right to give oral testimony in the trial of the appeal in the court of common pleas.
If the so-called oral application of June 6, 1925, by Rebic to his employer for compensation is sufficient to constitute a "pending proceeding" within the meaning of Section 26, General Code, it must follow that the law as it existed prior to the amendment effective July 14, 1925, controls the situation.
Section 26, General Code, reads as follows:
"Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act."
A proceeding in the enforcement of a civil right is an act necessary to be done in order to attain a given end. It is a prescribed mode of action for carrying into effect a legal right. Section 1465-74, General Code, provides:
"And any employee whose employer has elected to pay compensation to his injured * * * employees * * * may, in the event of the failure of his employer to [ so] pay such compensation * * * file his application with the [State Liability Board of Awards] for the purpose of having the amount of such compensation * * * determined."
Until the employer has failed to pay, the employee may not file his claim with the commission. The establishment of this failure to pay by the employer was the first step taken by the employee in the enforcement of his claim. True, the employee might have waited an indefinite time to satisfy himself of "the event of the failure of his employer to so pay" before filing his claim with the commission. He might also establish this jurisdictional fact of the failure of the employer to pay by going to him and making demand, and, if he met with refusal, such demand would constitute the first step in his proceeding to obtain compensation.
In the cases, Indus. Comm. v. Vail ( Indus. Comm. v. Kenemy), 110 Ohio St. 304, 142 N.E. 716, this court held:
"An application for compensation under the Workmen's Compensation Law (Gen. Code, Sections 1465-37 to 1465-108) filed with the Industrial Commission of Ohio prior to August 16, 1921, the date the amendment to Section 1465-90, General Code, became effective, is a proceeding within the provisions of Section 26, General Code, which ripens into an action upon an appeal from a denial of such claim by the Industrial Commission, and the amendment is not applicable in the trial of such action. The judgment of the Court of Appeals is affirmed in both cases."
Accordingly, the only thing necessary to decide is whether or not this particular matter was a pending proceeding prior to July 14, 1925.
Entertaining this view that the oral demand made by Rebic of his employer on June 6, 1925, was of such character as to constitute his claim a "pending proceeding," we think the principle of the Vail case applies, and our conclusion is that the judgment of the court below upon this point was correct.
Second, the remaining question is whether or not the oral testimony of Rebic as to his demand was properly admissible. We think this question has been decided in the case of Indus. Comm. v. Hilshorst, 117 Ohio St. 337, 158 N.E. 748, and that the Court of Appeals committeed no error in refusing to reverse upon that ground.
Upon the entire record, it is our conclusion that no prejudicial error exists, justifying a reversal of the judgment of the Court of Appeals, and said judgment is therefore affirmed.
Judgment affirmed.
MARSHALL, C.J., ALLEN, KINKADE and JONES, JJ., concur.
ROBINSON and MATTHIAS, JJ., dissent from proposition 1 of the syllabus and from the judgment.