Opinion
No. 30028
Decided March 28, 1945.
Workmen's compensation — Injury sustained in one county and death occurred in another county — Appeal from denial of death benefits — Petition must be filed in county where injury sustained — Section 1465-90, General Code.
Where a workman suffers death from an injury sustained in Ohio, a claimant for death benefits arising therefrom, whose claim is denied by the Industrial Commission upon rehearing, may not file a petition by way of appeal pursuant to Section 1465-90, General Code, in any county other than that in which the injury was sustained.
APPEAL from the Court of Appeals of Cuyahoga county.
Homer Ford, husband of the plaintiff, was employed by John Heiniger Company of Cleveland, Ohio, as a painter. In the summer of 1940, Ford went to Mt. Gilead, Morrow county, Ohio, to assist in doing a painting job for his employer. While so engaged, the scaffolding on which Ford was working broke and he fell, sustaining injury. He was taken to the East Cleveland Clinic and remained in Cleveland and vicinity until his death on June 20, 1941. His wife and child survived him. The wife subsequently filed a claim for death benefits with the Industrial Commission on the ground that the injury directly caused his death.
The claim having been denied on rehearing on May 17, 1943, the plaintiff, on May 27, 1943, filed her petition on appeal in the Common Pleas Court of Cuyahoga county. After the issues had been joined by answer and reply, the defendant filed a general demurrer to the reply, raising the question of its sufficiency in law.
The answer contains two defenses. After admitting in the first defense certain allegations of the petition and denying all others, defendant averred in the second defense, that decedent sustained injury in Morrow county, Ohio, in the course of his employment and that the Court of Common Pleas of Cuyahoga county did not have jurisdiction of the subject matter.
The reply pleads that counsel for defendant participated in negotiations for a settlement and withheld any claim that the trial court was without jurisdiction "until twenty-six days after the sixty-day period had expired and forty-seven days after its answer day had expired without securing consent or order of court for an extension of time within which to plead"; and that defendant by such conduct was "estopped from asserting the second defense set forth in the answer." The journal entry of the judgment rendered in favor of defendant in the trial court contains this recital:
"The parties by their attorneys come, waive a jury and submit this cause to the court on the pleadings and evidence. Thereupon, demurrer by defendant is sustained. After due trial, the petition is dismissed for want of jurisdiction, and judgment for defendant is rendered for costs."
The Court of Appeals, one judge dissenting, affirmed the judgment on authority of Industrial Commission v. Weigand, 128 Ohio St. 463, 191 N.E. 696.
This court allowed a motion to certify the record.
Messrs. Klein Diehm, for appellant.
Mr. Thomas J. Herbert and Mr. Hugh S. Jenkins, attorneys general, Mr. Robert E. Hall and Mr. C. G. L. Yearick, for appellee.
The syllabus in Industrial Commission v. Weigand, supra, reads as follows:
"1. After a claim has been denied by the Industrial Commission on jurisdictional grounds, Section 1465-90, General Code, grants a claimant the right to file a petition 'in the Common Pleas Court of the county wherein the injury was inflicted.' This is a special statute applying to cases brought under our workmen's compensation law. It relates not only to venue but to jurisdiction, since it selects the court which shall hear and determine such causes.
"2. A claimant appealing from such adverse decision of the commission must file his petition in the Common Pleas Court of the county wherein the injury was inflicted, if inflicted in Ohio. Failure so to do can be objected to at any time during the trial, and the objection is not waived by the commission having theretofore pleaded the general issue."
Section 1465-90, General Code, insofar as pertinent to the questions presented here, has not been changed and the principles pronounced in the foregoing syllabus are applicable to the case at bar. The filing of the petition under that section of the statute is in effect the institution of an appeal. If there were no statute giving a right of appeal, there would be no such right. On the other hand, where there is an express statutory provision granting an appeal and providing in what county and what court a party entitled to appeal may file a petition, the statute is exclusive and the general provisions of the Code of Civil Procedure, relating to venue and jurisdiction, have no application. The appellant lays great stress upon the fact that Section 1465-90, General Code, in providing that a claimant injured in Ohio may file his petition in the Common Pleas Court of the county wherein the injury was inflicted, uses the word "may" and not "must." Since the right to appeal conferred is exclusive, the intendment of the statute would not be altered had "must" been used in place of "may."
The question as to whether pleading to the merits constitutes a waiver has been settled by the Weigand case, supra; but the plaintiff raises the further question of estoppel. It is urged that defendant's counsel, by participating in negotiations for a settlement and refraining from filing any pleading on behalf of the defendant until after the statutory period of sixty days for filing a petition on appeal had expired, lulled plaintiff's counsel into the belief that the plaintiff would obtain some voluntary settlement or a fractional part of the fund to which she was entitled. By such conduct of defendant's counsel, it is further urged, plaintiff was prevented from learning of defendant's claim as to jurisdiction until it was too late to file a petition on appeal in the county where the injury was inflicted and the defendant, therefore, is estopped from raising the question of want of jurisdiction. Estoppel is an equitable principle and has no bearing upon venue and jurisdiction of the subject matter. They are determined by the statutes that are applicable.
A petition for appeal, where the workman suffers his injury in Ohio, can be filed only in the Court of Common Pleas of the county in which the injury was inflicted.
The Court of Appeals did not err and its judgment is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, TURNER, MATTHIAS and HART, JJ., concur.