Opinion
No. 30911
Decided June 25, 1947.
Workmen's Compensation — Additional award for violation of specific safety requirement — Section 35, Article II, Constitution — Industrial Commission to prescribe requirements to forewarn employer and establish standard — Decision of Industrial Commission final on factual question, when — Allowance of an additional award, not an abuse of discretion, when — Section 45 (c), Bulletin 207, Industrial Commission Code of Specific Safety Requirements — Operation and maintenance of presses, etc. — Substantially guarding knives of hand-fed squaring shears.
1. It is the duty of the Industrial Commission of Ohio under Section 35 of Article II of the Constitution to prescribe such specific safety requirements as will forewarn the employer and establish a standard which he may follow.
2. In the hearing upon an application for the allowance to an employee of an additional award because of the failure of the employer to comply with a specific safety requirement for the protection of the lives, health, or safety of employees, the decision of the Industrial Commission on any factual question is final.
3. Where the Industrial Commission finds, upon hearing, that an injury resulted because of the failure of the employer to comply with a specific safety requirement duly adopted, the allowance of an additional award not greater than fifty nor less than fifteen per centum of the maximum award of compensation established by law does not constitute an abuse of the commission's discretion.
4. Section 45 (c) of the Order of the Department of Industrial Relations and the Industrial Commission for specific safety requirements covering the operation and maintenance of presses, hammers, machines and machine tools used in manufacturing, finishing or fabricating products out of metal, tile, fiber, wood, leather or other material and all operations in connection therewith, when read in connection with other related provisions of such order, to wit, Section 3, paragraph 12, defining the word "guarded," and Section 3, paragraph 27, defining the word "substantial," is a specific requirement for the protection of the lives, health or safety of the employees within the purview of Section 35 of Article II of the Constitution.
IN MANDAMUS.
Relator filed an original action in this court seeking a writ of mandamus to compel respondent to deny the application of its employee, Leo Charles List, by which application such employee seeks an additional award by reason of relator's failure to comply with Section 45 (c) of the Industrial Commission's order contained in Bulletin 207, the Code of Specific Safety Requirements relating to the operation and maintenance of presses, hammers, machines and machine tools used in manufacturing, finishing or fabricating products out of metal, tile, fiber, wood, leather or other material and all operations in connection therewith. Relator gives two reasons why the writ should be allowed: (1) Section 45 (c) of the Bulletin 207 does not constitute a specific safety requirement within the meaning of Section 35, Article II of the Constitution of the state of Ohio; (2) Should Section 45 (c), Bulletin 207, be held to constitute a specific safety requirement, then relator comes within the exception as stated in the third sentence of Section 45 (c).
Respondent filed an answer, in the first defense of which the principal allegations of the petition were admitted, with the following denial:
"Respondent specifically denies that the above quoted order was unreasonable, arbitrary, unlawful, or that it constituted a gross abuse of discretion."
Respondent's second defense was in the nature of a demurrer, claiming that relator's petition does not state facts which show a cause of action.
For its third defense respondent denied that this court has jurisdiction of the subject of the action.
Mr. Robert J. Imbus and Mr. B. William Heidkamp, for relator. Mr. Hugh S. Jenkins, attorney general, Mr. R. Brooke Alloway and Mr. Albertus B. Conn, for respondent.
The present action seeks the issuance of a writ of mandamus compelling the Industrial Commission of Ohio to deny the application of one of relator's employees who seeks an additional award by reason of the plaintiff's alleged violation of Section 45 (c) of the Industrial Commission's order as contained in Bulletin 207 of the Code of Specific Safety Requirements relating to presses, hammers, machines, machine tools, etc. It follows the procedure adopted in the case of State, ex rel. Rae, v. Industrial Commission, 136 Ohio St. 168, 24 N.E.2d 594, wherein this court allowed a writ of mandamus to correct an abuse of discretion by the Industrial Commission. The sole question there presented was whether Section 87 of the Code of Specific Safety Requirements relating to building and construction work was a specific requirement within the meaning of Section 35, Article II of the Constitution of Ohio. In that case it was held in the per curiam opinion:
"It is settled in Ohio that a statute enacted by the General Assembly or orders by the Industrial Commission, which prescribe a general course of conduct, are not specific requirements within the meaning of the aforementioned constitutional provision." (Italics ours.)
Section 35 of Article II of the Constitution reads in part as follows:
"* * * Such board [now Industrial Commission of Ohio] 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 employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final * * *."
In the Rae case, supra, it was further said in the per curiam opinion:
"As was said in State, ex rel. Stuber, v. Industrial Commission, 127 Ohio St. 325, 188 N.E. 526: 'The controversy concerning general as opposed to specific requirements occupied the attention of this court before the language of Section 35, Article II of the Ohio Constitution was amended in 1923 so as to substitute the words "specific requirement" for the words lawful requirement." [Citing cases.] * * *
"Interpreting the meaning of the term 'lawful requirement,' the court, in American Woodenware Mfg. Co. v. Schorling, 96 Ohio St. 305, at page 325 ( 117 N.E. 366, Ann. Cas. 1918D, 318) said: 'We are convinced that the term "lawful requirement," as used in the constitutional, amendment and the statutory provisions involved in this case, was not intended to and does not mean a general course of conduct, or those general duties and obligations of care and caution which flow from the relation of employer and employee, and which rest upon each member of the community for the protection of the others.'
"In Patten v. Aluminum Castings Co., 105 Ohio St. 1, 136 N.E. 426, the court defined the term 'lawful requirement' as meaning 'specific requirement,' saying that 'The term "lawful requirement," as used in Section 35, Article II of the Constitution, and in Section 1465-76, General Code, comprehends such lawful, specific and definite requirements or standard of conduct as would advise an employer of his legal obligations.'
"If we substitute the word 'specific' for the word 'lawful,' we have a definition of the term 'specific requirement.' "
We are not unmindful that in the case of Ohio, Automatic Sprinkler Co. v. Fender, 108 Ohio St. 149, 141 N.E. 269, a majority of the court, as then constituted, held that the doctrine announced in American Woodenware Mfg. Co. v. Schorling, supra, Patten v. Aluminum Castings Co., supra, and Toledo Cooker Co. v. Sniegowski, 105 Ohio St. 161, 136 N.E. 904, was not the law and overruled those cases. The Rae case is a later case with a per curiam opinion. It was held in the Rae case that "it is the duty of the commission to prescribe such specific safety requirements as will forewarn the employer and establish a standard which he may follow."
The instant case differs from the case of Cincinnati House Wreckers, Inc., v. Industrial Commission, ante, 146, which was brought under Section 871-38, General Code, and sought the vacation of an additional award for the failure of an employer to comply with a specific safety requirement.
Without passing upon the propriety of the remedy in the instant case, we shall measure relator's complaints under the law laid down in the Rae case, supra, upon which relator relies.
Such Section 45 (c) provides as follows:
"Squaring shears, where hand fed, shall have the knives substantially guarded. Where the opening for receiving the material to be sheared is more than one-half (1/2) inch, this space shall not exceed twice the maximum thickness for which the machine is designed. This provision shall not apply where the material sheared is more than eighteen (18) inches in width."
Section 3, paragraph 12, Bulletin 207, provides:
"12. 'Guarded' unless otherwise specified herein, shall mean that the object is provided with guards as specified herein or in accordance with the Ohio General Safety Standards Code."
Section 3, paragraph 27, Bulletin 207, provides:
"27. The term 'substantial' when used herein shall mean construction of such strength, of such material and of such workmanship that the object referred to shall, under normal or reasonably foreseen circumstances, withstand all reasonably expected shock, wear, usage and deterioration for which the object was designed."
We are of the opinion that Section 45 (c), unlike Section 87 which was under consideration in the Rae case, does prescribe such specific safety requirements as will forewarn the employer and establish a standard which he may follow. It requires that hand-fed squaring shears shall have the knives substantially guarded. The purpose of the section is plain and the details to be followed by the employer are as specific as practical considerations permit. The section should be understood easily by any employer engaged in the use of the specified equipment. The employer is informed that "substantially" means construction of such strength, of such material and of such workmanship that the object referred to shall, under normal or reasonably foreseen circumstances, withstand all reasonably expected shock, wear, usage and deterioration for which the object was designed.
We are of the opinion that Section 45 (c) prescribes such safety requirements as will forewarn the employer and establish a standard which he may follow.
Relator further contends: "Should Section 45 (c) Bulletin 207 be held to constitute a specific safety requirement, then plaintiff comes within the exception as stated in the third sentence of said Section 45 (c)."
It is to be kept in mind that as to all factual matters, Section 35 of Article II of the Constitution makes the decision of the Industrial Commission final.
Relator states in its brief:
"It will be noted that the record states that Leo Charles List was engaged in cutting up a piece of sheet steel that was 8 feet long and 30 inches wide, into pieces 30 in. wide by 16 in. long. This fact is not in dispute. * * * However the commission contended, and may still so contend in this court that the language 'material sheared is more than 18 in. in width' meant the size of the piece after it had been cut. And furthermore in this case the commission said that the width of the piece as cut was 16 in. even though just as it was cut by the shearing blade it was 30 in. wide. It seems unlikely that as a part of the same process the width of an object machined suddenly becomes its length."
Relator is here arguing facts upon which we do not pass.
In the case of Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484, it was held in paragraphs one and two of the syllabus:
"1. 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 employes, 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. That feature of the Ohio Constitution does not violate the due process clause of the federal Constitution. The Ohio Constitution has not extended such finality of decision to questions of law arising in a proceeding where an additional award is imposed for the failure to comply with such specific requirement.
"2. Section 871-38, General Code, does not confer upon this court jurisdiction to review the decision of the commission in respect to the imposition of the added award. All questions relating to* such additional award, save that upon which the decision of the commission is final, may be heard and determined in a single suit wherein the employer, when sued under Section 1465-74, General Code, for the compensation fixed, may contest the basic legal questions necessary to be determined by the commission before making such additional award. ( Pittsburg Coal Co. v. Indus. Comm., 108 Ohio St. 185, 140 N.E. 684; Gatton v. Indus. Comm., 93 Ohio St. 203, 112 N.E. 503; Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St. 232, 116 N.E. 104; and DeWitt v. State, ex rel. Crabbe, Atty. Genl., 108 Ohio St. 513, 141 N.E. 551, followed.)
We are of the opinion that Section 45 (c) of the Industrial Commission Bulletin 207, the Code of Specific Safety Requirements, is a specific safety requirement within the purview of Section 35, Article II of the Constitution, and that such Section 45 (c) provides a reasonable requirement. We are of the further opinion that the allowance of an added award for the failure of List's employer to comply therewith does not constitute an abuse of the commission's discretion. Therefore, a writ of mandamus, as prayed for by relator, is denied.
Writ denied.
HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.
WEYGANDT, C.J., and MATTHIAS, J., concur in the judgment.