Police v. Industrial Commission. ERROR. G. E. Romano and C. W. Toland, for plaintiff in error. GRANT, J. By the petition in this proceeding we are asked to reverse the judgment of the court of common pleas. The error assigned is that that court refused to entertain the appeal of the plaintiff from the final action of the defend-ant, the Industrial Commission of Ohio, in this case, but dismissed the same as for want of jurisdiction of the subject thereof. In his petition in that court the plaintiff alleged as the fact is that the defendant is the successor in law of the former State Liability Board of Awards of Ohio, charged with the duties of the latter, to full effect, as provided by statute; that at the time when the plaintiff came to his injuries alleged, the Union Rolling Mill Company, his employer, was a contributor to the fund controlled by and subject to the award of the defendant, in the discharge of the duties devolved by law upon the latter. That in the course of such employment and arising therefrom, while in that service, the plaintiff received certain bodily hurts in the form of a double hernia, to his great and permanent injury. That the plaintiff thereupon elected to pursue the remedy for his wrong in the mode provided by the statute creating the defendant and prescribing its duties and jurisdiction, and made his application to that end, in due form and as provided by the law in question. That the defendant took jurisdiction in the matter and upon a hearing had, found and awarded to the plaintiff in the sum of $10.50 and no more, in full satisfaction of his right to compensation at its hands for his injuries had and received. That the award was in sum so grossly disproportionate to the just claim to which the plaintiff was entitled as the circumstances considered to amount to a total denial of his right to participate in the fund to which his employer was a contributor and to administer which in accordance with the facts the defendant was charged, as an official Cuyahoga County Appeals. duty, and that the circumstances still considered-the award, in that amount, must be regarded as having been made either under some mistake or was moved by passion or prejudice; in any event, that it was contrary to the evidence and the law, and that the application was heard without the plaintiff being notified and out of his presence, so that he had no day in court or due process of law. The prayer of the petition was for an award in satisfaction of the injuries sustained by the plaintiff. The defendant board answered, the substantive part of its defense being that it considered the plaintiff's claim, as it was in duty bound to do, and allowed to him only the sum named in the petition. The answer alleged that under the law this action of the board was final and conclusive as to the plaintiff's right to participate in the fund to which his employer had contributed and that he was, under the law, without further remedy. A trial was had to the court without a jury, at which the plaintiff gave testimony tending to prove the truth of the material allegations of his petition, which were not conclusions only, and that his injuries, from whatever cause arising, were serious and permanent. He also offered evidence to prove certain allegations of conclusion in his petition, but this was rejected. At this point the court below, of its own motion, raised the question of want of jurisdiction. After argument had the petition was dismissed on that sole ground. A motion for a new trial was made and denied, and a judgment in favor of the defendant for costs was thereupon entered. This action of the court below is assigned as error. The single question to be determined here is that of jurisdiction. Did the court of common pleas have it? Within the landmarks of the law being administered, it is the part of a good judge to enlarge his jurisdiction. So anciently said the maxim, which, we take it, means that the law is to be declared in the spirit of its creation, so that the declaration does no violence to its manifest expression in words. Applied to the statute which the defendant board is required to administer in its integrity, the principle is that the purpose of the law is to Police v. Industrial Commission. be made good and effectual. That purpose is in no way obscure or past finding out. And where the purpose is not observed by those entrusted with that service, or is plainly disregarded by employing its letter to defeat its end, the correlative duty of the courts is conceived to be to exert whatever power may reside in them to correct the evil and advance the appropriate remedy. We are inclined to think that much of the discussion as to whether this case in its progress from the commission to the common pleas court was an appeal in strictness of words or not, has been too technical and grudging in scope to promote the ends of the law. The word appeal has different meanings in different jurisdictions, and varies widely in application to various sets of circumstances. Of course, the appeal here was not an appeal in the sense that it brought the case up from an inferior to a superior court or judicial body; the defendant's functions are administrative. Constitutionally, they can not be assimilated to those of a court. This point has been settled, specifically, in State v. Creamer, 85 Ohio St. 349 [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694], where the predecessor of the present law in question was under review. What really is meant by the word appeal, as applied to the right of the plaintiff to come into the court below, is a mode of removing his cause from an administrative to a judicial tribunal --he having, as he says, been denied his legal right by the action or nonaction of the former. In a popular and perhaps inaccurate sense of the term, this method of passing his grievance on to a court from a board may be called an appeal, and in this sense we think the word is used when the statute authorizes the removal. Considering the just and beneficent end sought by the entire enactment, it should not be defeated in any case by applying a mere verbal rule of strictness destructive of its plain intendment. "The letter (of the law) killeth, but the spirit giveth life." We now come to a consideration of the statute which, if any does, confers the right of appeal in the sense we have found, in this case. It is 103 O. L. p. 88, Sec. 43, and is as follows: "The board shall have full power and authority to hear Cuyahoga County Appeals. and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such board denies the right of the claimant to participate at all in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant's right, then the claimant, within thirty days after the notice of the final action of such board, may be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it. * * * We are next to consider what the plaintiff applied for when he came to the defendant board invoking its action. He says: "I hereby make application to the Industrial Commission of Ohio for the payment of money out of the state insurance fund for compensation for injuries sustained by me on the eighth of April, 1913. * * "(B) My injury consisted of double rupture. Coming finally to the record of the hearing had of this application by the defendant board, it does not appear that the plaintiff was present. He says in his petition that he was not present and that he had no notice of it. And this is not controverted by the answer or otherwise. The finding of fact made at the hearing was in the following language: * * * * * * * "That applicant's injury consisted of a hernia, not resulting from an injury received in course of his employinent. That said injury was not purposely inflicted. That proof on file is such as to show an aggravation of said hernia, for which an award is allowed as above." * The award thus referred to states the injury before the board for action, as follows: "Injury; double inguinal hernia." And the award proper is in these words: "For medical services-$3. (Dr. O. E. Biddinger, 756 Run Bldg., Cleveland, O.) "For truss $3.50. (Applicant.) "For compensation-$7." Police v. Industrial Commission. The seven-dollar item is stated to be "two-thirds weekly wage." This finding, upon which the action of the board denominated an award is founded, affirmatively brings the case within the second exception of the statute which we have quotednamely: that the injury passed upon "did not arise in the course of employment." So that, if all compensation was refused, the right of appeal would be established, and the plaintiff would have his day in court on that footing and "be entitled," as the statute says, "to a trial in the ordinary way." An avoidance of this effect is sought, and apparently it was so intended by the finding, in the fact that an award of seven dollars was made as ostensible compensation for what is said to be an aggravation of the hernia, for causing which alone compensation was asked. The application made by the plaintiff is in the record in full and it is in no respect doubtful or ambiguous. Specifically and without an alternative asking, it calls for compensation for a double rupture arising in the course of the plaintiff's employment. Just as specifically, the finding is that the injury did not so arise. The plaintiff did not apply for any relief upon the ground that his injury was a pre-existing injury which had been "aggravated" in the course of his employment, and the finding does not say that the aggravation so arose. The award was for a thing not asked for and was in the nature of a voluntary act on the part of the commission. Whether it was regarded as a charity or donation or something akin to that in nature or intent, does not clearly appear, but that it could have been considered as in any reasonable or just sense a thing of compensation, seems to be negatived by the measure of relief purported to be advanced by the award itself as to its amount. The injury, if there was one, occurred on April 8, 1913. The application was sworn to on October 10. 1913. It was heard, and the alleged award was made October 24. And yet the allowance was as for two-thirds of the man's wages for one week. That an aggravation of a double hernia |