
    Industrial Commission of Ohio v. Pomeroy.
    (Decided February 25, 1929.)
    
      Mr. E. C. Turner, attorney general, and Mr. George W. Bitter, for plaintiff in error.
    
      Mr. James H. Boyd, for defendant in error.
   Williams, J.

The defendant in error, Edward Pomeroy, was injured by extreme physical exertion, resulting in overstrain, on June 10,1926, while making repairs on a traveling crane in the course of his employment as a carpenter and millwright for the Ensign Foundry Company in its plant in the city of Toledo. The claimant filed his claim for compensation with the Industrial Commission of Ohio, and, after the commission made a finding on rehearing to the effect that claimant was not entitled to participate in the state compensation fund, claimant, within the 60-day period, filed his petition in the court of common 'pleas under the provisions of Section 1465-90, General Code. In this petition, claimant was named as plaintiff and the Industrial Commission of Ohio as defendant. Upon trial in the court of common pleas the jury returned a verdict as follows: “We, the jury impanelled in the above-entitled action, the undersigned members concurring therein, for verdict find and say that we find for the plaintiff and fix the amount of $18.75 per week from June 24th, 1926, to October 20th, 1926, also the sum of $49.50 for doctor.” Certificate was entered accordingly, and costs taxed against defendant. This proceeding in error is brought to reverse the final order of the court below, as embodied in said certificate.

Plaintiff in error claims that the only question which the trial court could submit to the jury under Section 1465-90, is whether or not the claimant has a right to participate in the fund. The provisions of Section 1465-90 germane to the inquiry are as follows:

“Within ten days after the filing of the answer the Industrial Commission shall certify to such court a transcript of the record of such rehearing, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate * * * in such fund upon the evidence contained in such record and no other evidence; * * *. If the finding of the court or the verdict of the jury is in favor of the claimant’s right 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, and such certificate of the court shall be entered in the record of judgments of such court and shall for the purpose of error proceedings, be in lieu of final judgment in such cause. # * *
“The cost of any legal proceedings, authorized by this section, including an attorney’s fee to the claimant’s attorney to be fixed by the trial judge, shall be taxed against the unsuccessful party; provided, however, that such attorney fee shall not exceed twenty per cent of any award up to the sum of five hundred dollars, and ten per cent on all amounts in excess thereof, but in no event shall such fee exceed the sum of five hundred dollars. Either party in any of such proceedings shall have the right to prosecute error as in the ordinary civil cases.”

These provisions fix the jurisdiction of the court of common pleas on appeal by claimant from the order of the Industrial Commission on rehearing. The trial court in the charge used the following language:

“If, on the other hand, you find from the evidence in this case and from the law as given to you by the court that the plaintiff is entitled to recover and to participate in the insurance fund, you will find for the plaintiff.”

We think this instruction, followed by the finding of the jury for the plaintiff, makes it clear that the jury found that the plaintiff was entitled to participate in the fund. Under Section 1465-90 the trial court on appeal in the instant case could properly submit to the jury but one question, “Was the claimant entitled to participate in the fund?” The finding contained in the verdict as to the allowance of compensation and doctor’s bill must be disregarded as surplusage. The certificate of the court in lieu of final judgment was filed in the cause. This certificate recites the return of the verdict and a copy thereof, and the overruling of the defendant’s motion for a new trial. It also recites that the costs, including attorney fees, are taxed against the defendant. The allowance made for attorney’s fees as shown by said certificate was a lump sum of $63.75, and certain percentages. We think, as to attorney fees, the only power the court has is to fix the percentages in accordance with the statutory provisions above quoted, and the amount to be paid as attorney fees shall be determined by the commission at the time of fixing the award and in accordance with percentages fixed by the trial court. The discretion as to what those percentages shall be is vested in the court of common pleas, subject to the limitations provided in the statutes as to the amount.

We think the final order as embodied in the so-called certificate should be reversed, and the cause remanded, with directions to certify the finding or verdict of the jury to the Industrial Commission in accordance with this opinion, including in such certificate the findings and order of the court as to percentages for determining attorney fees, and as to other costs, and excluding from such certificate the part of the verdict that should be disregarded as surplusage, and with further instructions to enter such certificate in the record of judgments.

Judgment reversed and cause remanded.

Lloyd and Richards, JJ., concur.  