Opinion
No. 29118
Decided March 17, 1943.
Workmen's compensation — Industrial Commission to pass upon all issues and state ground denying claim — Section 1465-90, General Code — Res judicata applies to findings by Common Pleas Court on appeal — Doctrine applicable to defenses determined or determinable on appeal — Defenses not presented on appeal waived and thereafter barred — Industrial Commission bound to award some compensation after appeal, when — Dependent widow of deceased injured workman entitled to minimum, when — Sections 1465-82 and 1465-83, General Code — Writ of mandamus lies to compel payment — Workman died over eight years after injury received — Payment of funeral expenses not complete compliance with Common Pleas Court finding — Section 1465-89, General Code.
1. In considering a matter within its jurisdiction it is the duty of the Industrial Commission to pass definitely and specifically upon each and every issue raised in the claim necessary for a proper and complete decision thereon. In all claims for compensation on account of injury or death resulting therefrom, if the commission denies the right of the claimant to receive compensation or to continue to receive compensation the order of the commission shall state the ground or grounds upon which the claim was denied. (Section 1465-90, General Code.)
2. The doctrine of res judicata applies to findings and certifications by the Common Pleas Court in cases appealed from the Industrial Commission of Ohio under Section 1465-90, General Code. Such doctrine is applicable not only to defenses which were considered and determined but also to those defenses which could properly have been considered and determined.
3. Upon appeal to the Court of Common Pleas under Section 1465-90, General Code, the issue is the right of the claimant to participate or to continue to participate in the state insurance fund. Every defense available to the Industrial Commission of Ohio should be presented to the court and upon failure to present a particular defense it is waived and may not thereafter be raised in any subsequent proceeding or litigation between the same parties or their privies.
4. Where a Court of Common Pleas finds and certifies to the Industrial Commission of Ohio that a claimant has the right to participate in the state insurance fund, the commission is bound to award some compensation or benefit.
5. Where a Court of Common Pleas has found and certified that a wholly dependent widow of a deceased injured workman, who died as the result of a compensable injury, is entitled to participate in the state insurance fund, it is the duty of the Industrial Commission of Ohio to pay to such dependent at least the minimum provided by paragraph 2 of Section 1465-82, General Code, and in the manner provided by the first two paragraphs of Section 1465-83, General Code.
6. Where a petition in mandamus recites that the Court of Common Pleas in an appeal under Section 1465-90, General Code, had found and certified to the Industrial Commission of Ohio that claimant was entitled to participate in the state insurance fund, the recital in such petition of further facts showing that claimant was the dependent of an injured workman whose death resulting from a compensable injury had occurred more than eight years prior to her application to the commission for compensation or benefits pursuant to Section 1465-82, General Code, will not defeat such claimant's right to a peremptory writ of mandamus ordering the commission to pay at least the minimum award provided by Section 1465-82, General Code.
7. Where a Court of Common Pleas finds and certifies that a claimant under Section 1465-82, General Code, is entitled to participate in the state insurance fund, the payment by the commission of funeral expenses is not a complete compliance with the finding of such court.
IN MANDAMUS.
Relatrix filed her petition in mandamus in this court, in which it was alleged: That her husband, James Moore, was injured on February 5, 1930; that her husband's claim was recognized by the Industrial Commission as compensable and compensation was paid thereon to June 8, 1930, at which time claimant went back to work but was unable to work because of his injuries and was continuously disabled until May 7, 1939, the date of his death; that on December 30, 1930, an application for modification of award was filed; that on March 27, 1939, such application for modification was denied on rehearing; that this final order of the commission on the application for modification was eight years, two months and twenty-nine days after the application had been filed and nine years, one month and twenty-two days after the injury; that after final action of the commission and twenty days before the time for appeal from the action of the commission had expired, the claimant died; that on June 19, 1939, relatrix filed an application for award for the death of her husband on behalf of herself and children; that on November 6, 1939, the claim of relatrix was disallowed on rehearing on the ground that decedent's "death was not the result of an injury sustained in the course of and arising out of his employment;" that on August 8, 1940, relatrix filed a petition on appeal from the order of the commission in the Court of Common Pleas; that after demurrer had been sustained to the petition, an amended petition was filed; that on January 16, 1941, an answer to the amended petition was filed and on February 11, 1941, a transcript of the case was filed; that on April 4, 1941, the Court of Common Pleas found that plaintiff had a right to participate in the fund; that a motion for new trial was overruled and judgment was entered finding that the relatrix was entitled to participate in the state insurance fund, which judgment became final; and that upon certification the Industrial Commission found that the funeral bill in the statutory amount of $200 should be paid but that no death benefit could be awarded the widow since the decedent's death occurred more than eight years after the date of the injury.
Respondent filed an answer containing two defenses. In the first defense the facts above related as alleged in the petition, except that disability was continuous until death, were admitted and a schedule of the various proceedings before the commission was set out. The second defense was "Further answering, this respondent states that the petition in mandamus does not state facts sufficient to show a cause of action in mandamus entitling the relator to the relief prayed for."
It was stipulated: "It is hereby stipulated by the parties hereto that all of the evidence to be offered in this case is contained in the file of the claim with the Industrial Commission of Ohio; that said file, in its entirety, will be available at the time of the hearing of this cause in this court; and that all parts considered pertinent by either party will be identified and marked for the consideration of the Court."
It is alleged in the petition and disclosed in the file that the legal section of the commission advised the commission:
"There seems to be no question but what the decedent in his lifetime did sustain an injury in the course of his employment and that the injury was a very severe one and that the disability resulting from the same was continuous to the time of his death."
Contained in the same letter from the legal section is the following comment upon the testimony in behalf of claimant:
"A number of doctors testified in behalf of the claimant. The testimony of these men indicated that the claimant did have some disability from the time of his injury to the time of his death."
Mr. Milton M. Emden, Mr. John W. Cowell and Mrs. Ophelia Emden, for relatrix.
Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Albertus B: Conn, for respondent.
It is the contention of respondent that relatrix is not entitled to a peremptory writ of mandamus for the reason that her decedent died more than eight years after the date of his injury. While the fact of the death of claimant's decedent more than eight years after the date of his compensable injury would have been ground for rejection of the claim by the commission or on appeal, such question is not before us at this time.
It is alleged in the petition and admitted in the answer that the Court of Common Pleas on appeal found that the claimant had a right to participate in the state insurance fund and that such judgment became final. The question here presented is whether the respondent has complied with the finding and certificate of the Court of Common Pleas.
The record discloses that the following action was taken by the commission upon receipt of the certificate of the Court of Common Pleas:
"11/24/41. That funeral bill in the statutory amount of $200 be paid, and that the commission find from the proof of record that no death benefits can be awarded the widow since the decedent's death occurred more than eight years after the date of the injury."
It would be a travesty indeed if, after the General Assembly had provided that an appeal might be taken to the Court of Common Pleas from the Industrial Commission and after the court had found the plaintiff was entitled to participate in the fund, the commission might thereafter say such plaintiff was not entitled to participate. Yet that is exactly the situation we have here.
We think that all questions bearing upon the right of relatrix to participate in the state insurance fund were settled by the finding and certificate of the Common Pleas Court. Section 1465-90, General Code, contains the following provision:
"The commission shall definitely and specifically pass upon each and every issue raised in the claim necessary for a proper and complete decision thereon. In all claims for compensation on account of injury, or death resulting therefrom, if the commission denies the right of the claimant to receive compensation or to continue to receive compensation the order of the commission shall state the ground or grounds on which the claim was denied." (Italics ours.)
The foregoing provisions, being placed in the appeal section, evidence the purpose to avoid a multiplicity of appeals by requiring the appeal record to disclose all reasons for the denial of the claim, so that claimant's right to participate in the fund may be settled finally in the one appeal.
In the instant case the order of the commission on rehearing states:
"That the claim be disallowed on rehearing for the reason that decedent's death was not the result of an injury sustained in the course of and arising out of employment with the employer named therein."
Where a claim for benefits is filed under Section 1465-82, General Code, the following matters are necessarily placed in issue and a finding on each is necessary for a proper and complete decision on the claim, to wit:
(1) Unless the death occurred within the period of two years from the date of the compensable injury, claimant must show either that compensation or disability on account of injury has been continuous to the death of the injured person and the death is the result of such original compensable injury.
(2) That such death occurring after two years did occur within eight years after the date of the compensable injury.
(3) That claimant is a dependent.
The foregoing issues were each and all before the Court of Common Pleas. That court's judgment having become final, the parties thereto are bound thereby and no matter which was or might have been there litigated may afterwards be re-examined in any proceeding between the parties or their privies.
In respect of a judgment entered by the Court of Common Pleas and certified to the Industrial Commission, this court held in the case of State, ex rel. Kauffman, v. Industrial Commission, 121 Ohio St. 472, 169 N.E. 572:
"* * * it becomes the duty of the commission upon receiving such certificate to recognize the verdict and judgment as awarding some disability and to proceed to inquire the extent of such disability."
We cannot agree with the contention of respondent that under the facts of this case: "A reasonable interpretation of this language [Section 1465-90] appears to be that the granting of the right to participate does not necessarily import a meaning that the Industrial Commission must grant some compensation pursuant to such a mandate by the Court of Common Pleas." In this case the statute fixes a minimum participation or benefit.
Respondent argues that: "If the mandate of the Court of Common Pleas granting the right to participate would enable the court to direct some compensation, this would certainly seem to be an invasion of the jurisdiction of the commission by the court."
The complete answer to this contention is that if the commission has the right to refuse to grant any compensation or benefits after a judgment by the Court of Common Pleas granting the right to participate, then the appeal provision of Section 1465-90, General Code, would be futile. Every defense available to the commission must be presented to the Court of Common Pleas or waived. Such unpresented defense may not thereafter be urged in any further proceeding or action between the same parties.
We agree with the contention of respondent that the Court of Common Pleas "had no jurisdiction to inquire at all into the amount of compensation." There is nothing in the record to suggest that the Court of Common Pleas attempted to inquire into the amount of compensation. The respective duties of the Court of Common Pleas and the Industrial Commission are fixed in the foregoing respect by the following language of Section 1465-90, General Code:
"If the finding of the court or the verdict of the jury is in favor of the claimant's right to participate or to continue to participate in such fund, the court shall certify such finding or verdict to the Industrial Commission and the commission shall thereupon order compensation to be paid in the manner provided by this act for the payment of other awards."
Upon receipt of the certificate from the Court of Common Pleas it was the duty of respondent to fix the amount of the award in accordance with paragraph 2 of Section 1465-82, General Code (117 Ohio Laws, 111), which, at the time of the death of the workman, provided:
"2. If there are wholly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent of the average weekly wages, not to exceed eighteen dollars and seventy-five cents per week in any case, and to continue for the remainder of the period between the date of the death and eight years after the date of the injury, and not to amount to less than a minimum of two thousand dollars or more than a maximum of six thousand five hundred dollars, including the compensation paid to the deceased employee prior to death and benefits paid to the beneficiaries after death." (Italics ours.)
The question of the right of relatrix to participate having become res judicata by the finding of the Court of Common Pleas, it is the duty of the commission to award and pay relatrix as provided in Section 1465-83, General Code, at least the minimum benefits provided in Section 1465-82, General Code.
In the case of Hixon v. Ogg, 53 Ohio St. 361, 42 N.E. 32, it was held:
"Where issue has been joined on a material fact in an action, and the issue judicially determined and and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subseqent action, whether the second action is upon the same or a different subject matter from the first. In this respect it is immaterial that one of the actions may have been ex contractu and the other ex delicto."
In the case of Conold v. Stern, 138 Ohio St. 352, 35 N.E.2d 133, 137 A. L. R., 1003, it was held in the second paragraph of the syllabus:
"A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different."
In 23 Ohio Jurisprudence, 962, Section 731, it is said:
"The doctrine of res judicata may be said to inhere in the legal systems of all civilized nations as an obvious rule of expediency, public policy, public tranquility, and natural justice, which do not favor a multiplicity of actions, and which require that litigation shall not be interminable. To hold otherwise might be dangerous, often oppressive, and would open an endless avenue to contention and vexation. Without this fundamental doctrine in full force and effect it is declared that the proper enforcement of law would be quite impossible, as it would unsettle all the determinations of law. The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction, and should not be permitted again to harass and vex his opponent in a second action involving the same matter. * * *
"[page 964] This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order, because the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect to all matters properly put in issue and actually determined by them.
At page 985, Section 753, ibid, it is said:
"The doctrine of res judicata is applicable to defenses which were considered and determined, or which could properly have been considered and determined in the prior suit." (Italics ours.)
In support of the foregoing statement a number of Ohio cases are cited in the note. See, also, 34 Corpus Juris, 902, Section 1312 et seq., and 30 American Jurisprudence, 908, Section 161 et seq.
If it be argued that the application of the eight-year limitation under Section 1465-82, General Code, as a bar to the right of relatrix to participate in the state insurance fund was not called to the attention of the Court of Common Pleas, the complete answer is that it should have been and that such issue was properly before the court, and is now res judicata.
The claim is advanced by respondent that the allowance of funeral expenses under Section 1465-89, General Code, constituted a complete compliance with the judgment of the Court of Common Pleas. That this is not true appears from the wording of Section 1465-89 which authorizes such disbursement to be made in addition to the compensation provided by the Workmen's Compensation Act. Furthermore, Section 1465-82 (1) makes the following separate and specific provision for the expenses provided in Section 1465-89: "(1) If there be no dependents, the disbursements from the state insurance fund shall be limited to the expenses provided for in section forty-two hereof."
It follows, therefore, that a peremptory writ of mandamus should issue commanding the commission to pay to the relatrix not less than the minimum amount fixed by paragraph 2 of Section 1465-82, General Code, and in the manner provided in the first two paragraphs of Section 1465-83, General Code.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and WILLIAMS, JJ., concur.