Summary
In Parletto v. Industrial Commission, 140 Ohio St. 12, 42 N.E.2d 153, it is stated in paragraph four of the syllabus that "for the purpose of testing the legal sufficiency of a pleading, a demurrer admits not only the proper and well-pleaded factual allegations thereof, but also the fair, reasonable and favorable intendments and inferences arising therefrom."
Summary of this case from Farbach Chemical Co. v. Com. Chem. Co.Opinion
No. 29018
Decided May 27, 1942.
Workmen's compensation — Appeal — Sole issue right to participate or to continue to participate — Section 1465-90, General Code — Petition to allege such ultimate facts — Pleadings liberally construed with view to substantial justice — Section 11345, General Code — Demurrer admits factual allegations and inferences therefrom, when — Courts will not assume inguinal hernia may not result from injury — Pleadings may be amended, when — Section 11363, General Code.
1. In a workmen's compensation case, the sole issue is whether the claimant is entitled to participate or to continue to participate in the state insurance fund. Section 1465-90, General Code.
2. In a workmen's compensation case, the petition should contain allegations of ultimate facts showing claimant to be entitled to participate or to continue to participate in the state insurance fund.
3. Section 11345, General Code, requires that the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties.
4. For the purpose of testing the legal sufficiency of a pleading, a demurrer admits not only the proper and well-pleaded factual allegations thereof, but also the fair, reasonable and favorable intendments and inferences arising therefrom. ( Guardian Life Ins. Co. of America v. Veser, 128 Ohio St. 200, approved and followed.)
5. Courts will not assume as a matter of law that an inguinal hernia may not be the result of an injury received in the course of and arising out of the injured employee's employment.
6. Section 11363, General Code, permits the amendment of a pleading in furtherance of justice before or after judgment by inserting other allegations material to the case and to conform the pleadings to the proof adduced.
APPEAL from the Court of Appeals of Hamilton county.
Plaintiff below filed a petition stating:
Plaintiff says that the defendant is a commission created and existing under the laws of the state of Ohio, for the purpose of administering a state insurance fund provided for under the workmen's compensation laws of the state of Ohio.
"Plaintiff says that he comes into this court upon an appeal from the final action of the defendant in claim No. 125093-PE on the records of said commission.
"Plaintiff says that on the nineteenth day of August, 1940, he was in the employ of the city of Cincinnati, a municipal corporation, and that at all times the city of Cincinnati was a subscriber to the state insurance fund and had complied with the workmen's compensation laws of Ohio; that on said date plaintiff, while in the course of his employment, was required to lift a sack of cement weighing approximately 94 pounds from the floor of a shed located in the Gilbert avenue yards of the city of Cincinnati. Plaintiff was required to carry said sack of cement to a waiting truck and while attempting to throw the sack of cement onto the truck suffered a pain in his right side which was later diagnosed as an inguinal hernia. Plaintiff says he duly filed application for compensation with the defendant and that the claim was disallowed for the reason that 'proof on file does not show that claimant's disability was the result of an injury sustained in the course of and arising out of employment.' That he filed application for rehearing within thirty days after the notice of disallowance of the claim; that the application for rehearing was heard and testimony thereon reduced to writing; that on final hearing on said application for rehearing the claim was again denied on the second day of May, 1941, when plaintiff received the following notice:
" 'After round table conference, commission orders that the claim be disallowed on rehearing for the reason that such proof of record fails to establish claimant's disability is the result of injury sustained in the course of and arising out of employment.'
"That within sixty days after receipt of notice plaintiff files this petition in this court.
"Plaintiff says that he is entitled to compensation as provided by the workmen's compensation laws of Ohio.
"Wherefore, plaintiff asks that he be awarded compensation as provided by the workmen's compensation laws of Ohio and that a jury be impaneled and sworn to determine under instructions of the court the right of the plaintiff to participate in the state insurance fund and that the findings of the court and jury be certified to the Industrial Commission of Ohio and that said certificate of the court be entered in the record of judgment of said court and that he be allowed his costs together with and including the statutory attorney fees, hospital expenses and medical expenses."
Defendant below demurred to the petition for the reason that it "does not contain facts sufficient to constitute a cause of action."
The trial court overruled the demurrer and the defendant below declined to plead further. The court found from the allegations of the petition that the plaintiff is entitled to participate in the state insurance fund. Upon appeal to the Court of Appeals, the judgment of the trial court was affirmed.
The cause comes into this court following the allowance of a motion to certify the record.
Mr. John H. Druffel, Jr., for appellee.
Mr. Thomas J. Herbert, attorney general, Mr. E.P. Felker and Mr. Robert E. Hall, for appellant.
Defendant was content to rely upon its demurrer without having first filed a motion to the petition and without answering and going to trial upon the petition after the demurrer had been overruled.
As we said in the case of Goodman v. Industrial Commission, 135 Ohio St. 81, 82, 19 N.E.2d 508, and repeated in other cases:
"It hardly seems necessary to remark that in cases of this general type the peculiar facts of the individual case are largely controlling."
While, as stated by the Court of Appeals, the petition is subject to criticism, it cannot be said with finality that it does not contain sufficient allegations to justify the admission of evidence to show a compensable claim. However, its margin of safety is so narrow that it should not be used as a model. Had the case come to trial, it might have required an amendment to conform the petition to the proof or to insert other allegations material to the case, and such amendment would have rested in the sound discretion of the trial court. The purpose of such petition was to secure a review by the Court of Common Pleas of the finding of the Industrial Commission.
The sole issue in a workmen's compensation case is the right of the claimant to participate or to continue to participate in the state insurance fund. Section 1465-90, General Code.
While Section 1465-90, General Code, provides that a claimant for workmen's compensation may file a petition in the Common Pleas Court, the Code does not prescribe what such petition shall contain. We interpret this provision to require a petition to contain allegations of ultimate facts which show the claimant to be entitled to participate or to continue to participate in the state insurance fund. In other words, the petition should be the standard for the introduction or rejection in the Common Pleas Court of the evidence contained in the transcript of the record of rehearing, whether such evidence was received or merely offered at the rehearing.
Section 11345, General Code, provides:
"The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties."
Under Section 11363, General Code, the trial court may, in the furtherance of justice, permit the amendment of a pleading before or after judgment "by inserting other allegations material to the case."
In the case of Guardian Life Ins. Co. of America v. Veser, 128 Ohio St. 200, 190 N.E. 405, we held:
"For the purpose of testing the legal sufficiency of a pleading, a demurrer admits not only the proper and well-pleaded factual allegations thereof, but also the fair, reasonable and favorable intendments and inferences arising therefrom."
In the instant case, there is raised for the first time the effect of the recent amendment to Section 1465-68, General Code, whereby there was added, effective July 10, 1937:
"The term 'injury' as used in this section and in the Workmen's Compensation Act shall include any injury received in the course of, and arising out of, the injured employee's employment."
Appellee, while claiming that his petition is sufficiently broad to show a compensable injury under the holdings of this court, contends that the amendment has modified our previous definition of compensable injury.
On behalf of appellant, it is contended that the only effect of the amendment is to codify our earlier definition of compensable injury.
As we hold that a compensable injury as heretofore defined by this court may have been shown under the petition, and as there is no record with medical and other evidence to guide us, we shall defer passing upon the amendment until it is necessarily and squarely involved. In any event, our holding here is not inconsistent with the amendment.
The real point that appellant attempts to make is that all inguinal hernia cases develop gradually from congenital conditions and, therefore, call for the allegation in the petition of special facts and circumstances to show such case to be compensable. While recognizing that an inguinal hernia due to congenital conditions may occur in the course of an employee's ordinary work done in the usual or ordinary way without extraordinary effort, we are not prepared to say as a matter of law that hernia may not occur as a result of a tearing due to unusual or extraordinary effort.
For the foregoing reasons, the judgment below must be affirmed.
Judgment affirmed.
WEYGANDT, C.J., WILLIAM and HART, JJ., concur.
ZIMMERMAN and BETTMAN, JJ., not participating.