Larimore v. Perfect, Admr. , 45 Ohio App. 136 ( 1932 )

In brief, the plaintiff in error in his petition claims that on February 5, 1925, he was engaged in his employment as a painter for Abner E. Riddle, in Urbana, Ohio, who was at that time his employer and had in his service five or more workmen and operatives regularly employed by contract of hire; that on said date he was injured when a door fell on his right foot; that by reason of the falling of said door he was compelled on July 27, 1930, to have two toes, and the metatarsal bones connected therewith, amputated; that the necessity for such operation was not discovered until May, 1930, when the plaintiff in error learned that he was suffering from osteitis of the great toe, of the toe next to it, and also of the joints and bones on his right foot; that in June, 1931, plaintiff in error filed his application in writing with the Industrial Commission of the state of Ohio for compensation for said injury; that on July 7, 1931, the commission heard said claim, No. 4006-27, and upon consideration denied plaintiff in error the right to receive compensation and refused same on the ground that it was without jurisdiction; that on July 28, 1931, plaintiff in error filed his application for a rehearing, which rehearing was had on December 31, 1931, when the said commission again denied plaintiff in error the right to receive compensation for said injury, and refused the same, on the ground that the commission was without jurisdiction, and plaintiff in error therefore brings this action under favor of Section 1465-90, General Code; that the said C.B. Perfect has been appointed as administrator of the estate of Abner E. Riddle, deceased, and plaintiff in error, on February 23, 1932, presented his claim for compensation for said injury with said Perfect as such administrator and that on the same date the said administrator rejected said claim in writing for the reason that there were no assets belonging to said decedent or estate. The petition of plaintiff in error further recites that in February, 1925, after the injury above referred to, he filed his application with the Industrial Commission of Ohio for compensation for injury to his left foot, caused by the falling of the same door as fell on his right foot, and at the same time and place where the injury to his right foot occurred, for which latter injury he did not then claim compensation for the reason previously stated in the petition.

Plaintiff in error therefore asks that the Industrial Commission be required to certify to this court a transcript of the record of such rehearing, as provided by Section 1465-90, General Code, and asks judgment against said defendant; that he be held entitled to participate in the Workmen's Compensation Fund and to receive compensation for said injury to and loss by amputation of his great toe, the toe next to it, and the metatarsal bones connected therewith, on his right foot, as aforesaid, to be paid in the amount and in the manner provided by the Workmen's Compensation Laws of the state of Ohio, and for such other relief as is proper.

The papers on file in the case show that the administrator waived the service of summons, but has filed no answer and did not make any defense in the court of common pleas, as appears from the record.

Thereupon the Industrial Commission of Ohio made application to be made a party to the action. Such leave was granted and the Industrial Commission filed a demurrer to the petition upon the grounds: (1) That the petition does not state facts which show a cause of action, and (2) that the court has no jurisdiction of the subject of the action.

This demurrer was subsequently submitted to the trial court, with the result that the demurrer was sustained, and the plaintiff in error not desiring to plead further the petition was dismissed. From such judgment error is prosecuted to this court.

The first ground of error urged by counsel for plaintiff in error relates to the court's ruling in making the Industrial Commission of Ohio a party defendant in the case. Counsel claim that the Industrial Commission is neither an interested, a necessary, nor a proper party.

The petition shows that the administrator of Abner E. Riddle rejected the claim for the reason that there were no assets belonging to said decedent or his estate. We find among the papers in the case a stipulation signed by counsel as follows: "It is stipulated by and between counsel for plaintiff and counsel for Industrial Commission that there are now no known assets in the estate of Abner Riddle, deceased."

It is thus apparent that the estate of Abner E. Riddle is insolvent. The petition does not show what action was taken in 1925 by the Industrial Commission upon the application of plaintiff in error for compensation for injury to his left foot, caused by the falling of the same door which fell on his right foot, and at the same time and place when the injury to his right foot occurred.

The Workmen's Compensation Act is purely a creature of statute and is governed entirely by statutory regulations.

In the event plaintiff in error is successful in this action it becomes the duty of the Industrial Commission to determine the amount of compensation due plaintiff in error, and then to make an order against the estate of Abner E. Riddle to pay such award within ten days. If the same is not so paid, then it becomes the duty of the commission to certify the same to the Attorney General of Ohio for collection. If such award is certified back to the Industrial Commission by the Attorney General as uncollectible, then, under the provisions of Section 1465-74, General Code, it becomes the duty of the commission to pay such award from the surplus created by Section 1465-54, General Code. It thus clearly appears that the Industrial Commission of Ohio is an interested party, and, being such, we think it was the duty of the commission to see that a proper defense was made.

That an award under the circumstances of this case is subject to payment out of the surplus fund created by Section 1465-54, General Code, has been definitely determined by our Supreme Court in the case of State, ex rel. Thompson, v. Industrial Commission,121 Ohio St. 17, 166 N.E. 806, and in the case of State, exrel. Croy, v. Industrial Commission, 122 Ohio St. 65,170 N.E. 644.

Plaintiff in error resisted this motion upon the ground that under Section 1465-90, General Code, it is not contemplated that the Industrial Commission should be a party in a proceeding of this nature.

Section 11255, General Code, provides that any person may be a defendant who has or claims an interest in the controversy adverse to plaintiff or who is a necessary party to a complete determination or settlement of the question involved therein.

Section 11262, General Code, provides that when such determination cannot be had without the presence of other parties, the court may order them to be brought in, or dismiss the action without prejudice.

We think the various sections of the Code should be read and considered together, and that upon such consideration the Industrial Commission of Ohio was not only a proper but a necessary party to the proper determination of the case.

We also think that when the purposes of the act are considered Section 1465-90, General Code, permits the making of the Industrial Commission a party defendant.

In reference to the court's ruling upon the demurrer, we find, as above quoted from the petition, that the plaintiff in error was injured on the 5th day of February, 1925, and in June, 1931, filed his application with the Industrial Commission of Ohio for compensation for injury to and loss by amputation of his great toe, the toe next to the same, and the metatarsal bones connected therewith on his right foot, to be paid in amount and manner provided by the Workmen's Compensation Act.

Section 1465-72a provides: "In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, application shall have been made to the industrial commission of Ohio or to the employer in the event such employer has elected to pay compensation direct."

Plaintiff in error attempts to excuse the delay in presenting this application because of his failure to discover the injury to the right foot until some years after it occurred. We cannot escape the conclusion that this does not relieve plaintiff in error from the express provisions of Section 1465-72a, General Code.

Upon a careful consideration of the record and briefs of counsel, we find no error in the record which we consider prejudicial to plaintiff in error, and the judgment of the lower court will be affirmed.

Judgment affirmed.

ALLREAD, P.J., and HORNBECK, J., concur.