Summary
In Reed, there was no evidence to show that the employer knew, or had reason to believe, that the construction and maintenance of the device violated a specific safety standard.
Summary of this case from State, ex Rel. Lyburn Const., v. Indus. CommOpinion
No. 38827
Decided June 2, 1965.
Workmen's compensation — Device used by employee violative of specific safety requirements — Employer not owner or responsible for such device — Employee doing work for owner of device — "Employer" not one comprehended by Section 35, Article II, Constitution.
An employer who neither owns nor is responsible for the condition and maintenance of a device used by his employee in doing work for the owner thereof, which device as constructed is violative of a specific safety requirement imposed by law or by an order of the Industrial Commission, and the employee is injured in its use and because of its condition, such employer is not the "employer" comprehended by Section 35, Article II of the Constitution of Ohio, for whose disregard of a specific safety requirement the Industrial Commission is empowered to make an additional compensation award to the injured employee.
APPEAL from the Court of Appeals for Franklin County.
This is an action in mandamus which originated in the Court of Common Pleas of Franklin County. Robert E. Reed is the relator, and the Industrial Commission of Ohio is the respondent. The question for decision is whether in the circumstances relator's employer is chargeable with a violation of a specific safety requirement and thereby subject to the penalty ( State, ex rel. Emmich, v. Industrial Commission, 148 Ohio St. 658, 76 N.E.2d 710, paragraph three of the syllabus) imposed by Section 35, Article II of the Constitution of Ohio, with the plain duty resting on the respondent to determine the amount of the additional award to relator, as provided in Section 4121.131, Revised Code.
Relator was an employee of Robert L. Sweigart. The latter had been engaged by the S.J. Rudy Son Company to repair the warped exterior walls of silo-type storage bins connected with a grain elevator in Covington, Ohio, owned and operated by Rudy. To facilitate the repair work, Rudy informally permitted Sweigart to use an electric powered elevator or lift installed and owned by Rudy and located between two of the bins. As the elevator cage occupied by relator and a fellow employee was ascending next to the bins, relator extended his head out of the rear of the cage, and it was caught "between the back of the cage enclosure and the edge of the shaftway opening at the top of the bins," resulting in substantial injuries to relator. It appears to be conceded that the construction and maintenance of the cage violated sections of Bulletin 110 of the Code of Specific Safety Requirements covering passenger and freight elevators.
Relator's claim for workmen's compensation and medical expenses was allowed by respondent and paid. Later, relator filed an application for an additional award on the ground that his injuries were due to the violation by his employer of a specific safety requirement. Such application was denied on hearing and rehearing. Thereupon, the present action in mandamus was brought. The writ was allowed by the Court of Common Pleas. On an appeal on questions of law, the Court of Appeals reversed the judgment below and stated in the journal entry:
"In consideration of the petition, the answer, stipulation of facts, briefs and oral arguments of the parties, the court finds that the order and judgment of the Common Pleas Court was in error in granting the writ prayed for.
"It is therefore, ordered, adjudged and decreed that the order of the Common Pleas Court granting the writ prayed for is reversed, and the order to issue the writ directing the Industrial Commission to make an additional award is set aside and held for naught."
An appeal as of right and the allowance of a motion to require the Court of Appeals to certify the record bring the cause before this court for decision.
Messrs. Fullerton Shimp, for appellant.
Mr. William B. Saxbe, attorney general, Mr. Robert M. Duncan, Mr. John A. Sentz, Jr., and Mr. Pierce E. Cunningham, for appellee.
As relevant, Section 35, Article II of the Constitution of Ohio, recites:
"* * * Such board [Industrial Commission] shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final; and for the purpose of such investigations and inquiries it may appoint referees. When it is found, upon hearing, that an injury, disease or death resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury, disease, or death, and paid in like manner as other awards * * *."
Paragraph one of the syllabus of Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484, holds:
"Section 35 of Article II of the Ohio Constitution, as amended in 1923, conferred upon the Industrial Commission of Ohio full power and authority to hear and determine `whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such board;' upon that question of fact the decision of the commission is final."
"* * * Relator in an action in mandamus to compel the allowance of an additional award must show that the finding of the Industrial Commission against him amounts to an abuse of discretion." State, ex rel. Berry, v. Industrial Commission, 129 Ohio St. 228, 194 N.E. 414. See, also, State v. Ohio Stove Co., 154 Ohio St. 27, at pages 36 and 37, 93 N.E.2d 291, which emphasizes the point that it is the failure of the employer to comply with a specific lawful requirement which is the basis for the imposition of an additional award.
State, ex rel. Whitman, v. Industrial Commission, 131 Ohio St. 375, 3 N.E.2d 52, 106 A.L.R. 72, makes it plain that an "employer" within the contemplation of Section 35, Article II of the Ohio Constitution, is one who has failed to comply with a specific safety requirement, such case holding that a general contractor who did not construct faulty scaffolding, the use of which scaffolding caused injury to his employee, could not be successfully charged with a violation of a specific safety requirement.
Here, Rudy owned the elevator cage and was responsible for its condition and maintenance. Sweigart merely used the instrumentality with Rudy's permission to facilitate his work for Rudy. There is nothing to show that Sweigart knew or had reason to believe that the construction and maintenance of the elevator cage violated parts of Bulletin 110. It would, therefore, seem unfair under these circumstances to punish Sweigart for a condition which he did not create and which he had no authority to alter or correct, and thereby place him in the category of an "employer" who failed to comply with a specific safety requirement within the intendment of Section 35, Article II of the Constitution.
There was no abuse of discretion on the part of respondent, and no clear legal duty rested on it to penalize Sweigart by ordering the payment of an additional award. This was the position taken by the Court of Appeals, and we agree therewith. It is well established that penalties are not favored in either law or equity and should be imposed only when clearly justified.
Therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., MATTHIAS, O'NEILL, SCHNEIDER and BROWN, JJ., concur.
I regret that I am unable to agree with my colleagues in the matter of the disposition of this case.
Perhaps additional facts may clarify my position. I do not intend to weigh the evidence but rather to rely upon the uncontradicted evidence of record which may present the law questions in a different light.
The employer, Robert L. Sweigart, contracted with S.J. Rudy Son to repair cracks in the walls near the tops of certain storage silo bins, about 100 feet high. The tops of the silos, where Sweigart's job was in progress, were reached by a manlift elevator moving in a shaft between the walls of two silos.
Sweigart and his employees used this elevator in ascending to their place of work and in carrying gear, rope and other equipment used on the job to a swinging scaffold suspended from the tops of the bins.
Sweigart, the employer, had personally used the elevator repeatedly during a period of about one and one-half weeks prior to relator's (Reed's) injury. This elevator is the "device" mentioned in the syllabus of the majority.
Near quitting time, relator was in the elevator with another of Sweigart's employees taking some rope up to place on the scaffold overnight. While the elevator was moving upwards, someone called relator from below. He moved his head and looked down the side of the open shaft, when his head was caught between the elevator moving upwards and the edge of the shaftway, causing severe injuries.
The stipulation of facts states that:
"The cage [of the elevator] measured 24 inches by 28 inches by 86 inches inside. The cage is open at the front. One side and the back is enclosed to a height of 4 ft. with the other side being enclosed to a height of 6 ft." Consequently, one side of the elevator was open from approximately the height of a man's waist upwards.
Bulletin No. 110, adopted and issued by the Industrial Commission, at page 167, Section 812.1, provides that:
"Except at the entrance, the car shall be enclosed at sides and top. The enclosure at the sides shall be solid or of open work which will reject a one (1) inch diameter ball." (Emphasis added.)
This is a specific safety requirement under the Constitution and laws of Ohio.
Sweigart, the employer, was thoroughly familiar with the structure and condition of the elevator — he had used it and he saw his employees use it and he and an employee rode in it together.
In view of the stipulation of record, Sweigart was thoroughly familiar with the dangerous and harazdous condition within the cage of the elevator which was obvious to anyone entering the elevator. The majority concedes that the condition of the elevator was violative of a specific safety regulation imposed by law but excuses the employer on the ground that he did not own or maintain the elevator. I cannot agree that this is a sound principle of law. If it is, then an employer, who has borrowed and is using an obviously dangerous device on a contract job upon which an employee is injured, is permitted to escape the obligation of additional compensation by merely saying in substance:
"I don't own or maintain the dangerous device. I just borrow it and use it on the job and require my employees to use it."
The ownership of the device is not material in the disposition of this additional-award-of-compensation claim, but the test is the use of it by the employer, knowing its unguarded hazards and dangers to his employees.
It would have been a simple matter for Sweigart to have asked Rudy to board up the sides and back of the cage of the elevator or to have done so himself rather than violate a regulation specifically adopted to prevent injury or death to an employee.
The failure of the Industrial Commission to grant relator additional compensation was an abuse of discretion.
The judgment of the Court of Appeals should be reversed.