Opinion
No. 24394
Decided February 21, 1934.
Workmen's compensation — Rehearing application may be filed by claimant or his attorney — Section 1465-90, General Code — Signing and filing application presumptive evidence of attorney's authority, when.
1. The provision of Section 1465-90, General Code, relating to the filing by a claimant of an application for a rehearing within thirty days after denial of his claim by the Industrial Commission, permits such filing to be done either by the claimant or by his authorized attorney.
2. Where an attorney has executed and filed such application with the commission, the attorney signing claimant's name thereto by himself as attorney, the signing and filing of such application furnish presumptive evidence of the attorney's authority to so act in claimant's behalf.
IN MANDAMUS.
This is an original action in mandamus filed in this court wherein the relator, Elizabeth Juergens, seeks a writ compelling the Industrial Commission to vacate its order dismissing her application for a rehearing, and to pass upon her rehearing application. The cause was presented to this court upon the petition, amended answer and stipulation of facts.
So far as they are germane the conceded facts may be briefly stated: The relator, who is the widow of the decedent, filed her application for compensation for injuries sustained by her husband. This application was considered by the commission and denied for the reason that the injury was not occasioned in the course of employment. The relator received notice of that denial on April 30, 1928. For later proceedings in connection with the claim the statement of facts contained in the second defense of respondent's answer, and in the stipulation, discloses that after relator had received notice that her claim had been denied one Urban R. Juergens, acting as attorney for claimant, filled out an application for a rehearing on a blank which was signed "Mrs. Elizabeth Juergens, by Urban R. Juergens, her attorney." On May 28, 1928, the attorney took the application for a rehearing to a branch office of the Department of Industrial Relations at Springfield, which was in charge of one Seaman, and handed the application to that individual on the same day, and Seaman placed that application in the mail, directed to the Industrial Commission at Columbus, and it was received by the commission on May 31, 1928. This was done by attorney Juergens upon the advice of the secretary of the Industrial Commission, who advised such proceeding in order to eliminate the necessity of the attorney going to Columbus personally. In June, 1928, the relator filed a second application for rehearing upon a blank form furnished by the commission. This was done pursuant to a letter from the Industrial Commission to the relator's attorney, Juergens, which stated: "We acknowledge receipt of the application for rehearing filed by you in this case. However, in order to conform to the practice of the Industrial Commission, we are enclosing a blank application for rehearing which we suggest be completed and filed by the claimant, or, if you do not prefer to do this, you may file a written statement from the claimant showing your authority to act in her behalf." This blank was filled out and signed by the relator and forwarded to the commission on June 14, 1928. The commission acted upon the application, took testimony, and on July 10, 1929, made the following order: "This cause coming on for hearing on the application for rehearing on the transcript of testimony and evidence submitted in connection therewith, the Commission finds that the application for rehearing was not filed within the time required by law, hence the application for rehearing and proceedings therewith are dismissed."
Various efforts were thereafter made by the relator to vacate this order of July 10th, but without effect; wherefore this action by the relator to vacate the commission's order dismissing the application for a rehearing and requiring that body to pass upon claimant's application for a rehearing.
Mr. U.R. Juergens and Messrs. Cowan, Adams Adams, for relator.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
While the commission does not state why it dismissed the application for rehearing, conceivably its reason therefor is that which is now urged by its counsel, and that is that the first application, filed in May, 1928, bearing the signature, "Mrs. Elizabeth Juergens by Urban R. Juergens, her attorney," was not a compliance with the statute, for the reason that the application was not in fact signed or filed by the claimant herself. The second application, forwarded by her to the commission in June, must have been considered by the commission as having been filed after the thirty-day period.
In their brief the counsel for the commission frankly state that the case turns upon the proposition whether, under the provisions of Section 1465-90, General Code, the claimant, rather than her attorney, must file the application. That section provides that "the claimant may within thirty days after receipt of notice * * * file an application with the commission for a rehearing of his claim." Obviously this section does not require the claimant to sign the application, but to "file" it with the commission.
We are of the opinion that the application may be filed either by the claimant or by an attorney authorized to file it in his behalf. When a claim has been denied by the commission, the case assumes an aspect of possible litigation in the courts, where the claimant obviously would be required to seek professional counsel, who thenceforth would act in the preparation of proceedings for appeal and in the conduct and trial of the case. In such a situation we can see no reason why a claimant may not confide the power of filing his application to an attorney, and authorize him to act in his behalf. The application of May 28, 1928, was signed "Mrs. Elizabeth Juergens, by Urban R. Juergens her attorney." At that stage of the proceeding, the attorney sought to enter and act therein as an attorney of record for the claimant. The written application signed by him as such attorney was presumptive evidence of his authority to file the application, and such authority is presumed until repelled by evidence. "It is well established in the courts of this country, federal and state, that the appearance of a regularly admitted attorney at law is presumptive evidence of his authority to represent the person for whom he appears. This rule is well established in Ohio." 4 Ohio Jurisprudence, pages 456 and 457.
Evidently the commission was of the opinion that the first application for rehearing, filed in May, 1928, was valid if the attorney furnished proof of his authority, for on June 8, 1928, the record discloses that the Industrial Commission wrote to the attorney acknowledging receipt of the application for rehearing filed in May, and suggesting that the application be signed by the claimant, "or if you do not prefer to do this you may file a written statement from the claimant showing your attorney to act in her behalf." In cases of this character, where a claimant is of necessity required to seek the advice of counsel with respect to appeal and prospective litigation, the statute should be liberally construed in order to effectuate its obvious purpose. Adhering to that rule of construction, we are of opinion that the quoted part of Section 1465-90, General Code, permits the filing of an application for rehearing either by the claimant or by an attorney in his behalf. The question presented here is somewhat analogous to that presented in the case of Kenton v. Board of Education of Mad River Township, 70 Ohio St. 172, 71 N.E. 287.
The cases of Roma v. Industrial Commission, 97 Ohio St. 247, 119 N.E. 461, and State, ex rel. Sheppler, v. Industrial Commission, 123 Ohio St. 256, 174. N.E. 764, are distinguishable. In the Roma case the facts developed in the opinion tended to disclose that, while notice was sent to the claimant's attorney, the attorney thereafter withdrew from the case; the jury finding that the claimant did not receive notice of the action of the commission denying his claim until too late to prosecute his appeal. In the Sheppler case, it is definitely stated that claimant's application for rehearing was filed long after the period of thirty days subsequent to her receipt of actual notice of its rejection.
The motion of the respondent to dismiss the case is overruled, for the reason that after the filing thereof leave was granted by this court to so change the style of the case as to make it appear that the action was brought by the state on the relation of the claimant.
It follows from what has been said that, if the respondent does not desire to further plead, a writ of mandamus will be granted as prayed for.
Motion to dismiss overruled and writ allowed.
WEYGANDT, C.J., ALLEN, STEPHENSON, BEVIS and ZIMMERMAN, JJ., concur.
MATTHIAS, J., not participating.