
    The Marion Steam Shovel Co. v. Hunter.
    (Decided April 11, 1930.)
    
      Messrs. Guthery, Strelits $ Guthery, for plaintiff in error.
    
      Mr. L. E. Myers, for defendant in error.
   Justice, J.

The action was brought under and by virtue of Section 1465-37 &t seq., General Code, commonly known as the Workmen’s Compensation Act.

The Marion Steam Shovel Company, under the provisions of Section 1465-69, General Code, elected to pay and furnish direct compensation to its injured employees and dependents of killed employees. Charles Hunter, the plaintiff below, defendant in error here, was one of its employees. He maintained that he was injured on the 7th day of September, 1926, while engaged in the course of his employment at the plant of the defendant. The company denied the injury. Plaintiff, on October 8, 1926, filed with the Industrial Commission an application for adjustment of his claim. Upon its hearing, and rehearing, said application was denied upon the grounds “that the Commission has no jurisdiqtion of the claim and no authority thereby to inquire into the extent of disability or amount of compensation claimed.” Thereafter, the claim was appealed to the court of common pleas of Marion county, where, upon trial, without the intervention of a jury, the court found for plaintiff. A motion for a new trial Was overruled and a judgment entered. The Marion Steam Shovel Company, as plaintiff in error, brings the case into this court upon a petition in error, seeking a reversal of that judgment.

There is no bill of exceptions or finding of facts either to inform us upon the issues of the claimed injury or to advise us of the facts which prompted the trial court in allowing plaintiff’s counsel the sum of $50 as attorney fees, to be taxed as costs. In such a state of the record, however, a presumption of law arises that the trial court had before it such facts as warranted it in finding that plaintiff was injured as claimed in the petition, and in allowing the $50 as attorney fees. Pure Oil Co. v. Kindall, 116 Ohio St., 188, 156 N. E., 119.

We learn from the journal-entry, however, that a judgment was entered in favor of the plaintiff and against the defendant in the sum of $194.75. This is wrong. Section 1465-90, General Code, so far as pertinent here, provides: “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, 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.”

In State, ex rel. Kauffman, v. Industrial Commission of Ohio, 121 Ohio St., 472, 169 N. E., 572, our Supreme Court held: “By virtue of Section 1465-90, General Code, in cases heard on appeal to a common pleas court from the Industrial Commission, the jury may only find whether or not the claimant is entitled to participate in the workmen’s compensation fund, and the court may only pronounce judgment whether the claimant is entitled to participate in the workmen’s compensation fund and to be paid in the manner provided by the workmen’s compensation law.”

Manifestly, the judgment, as entered, is erroneous. The trial court should have proceeded as directed by said Section 1465-90. Its failure to follow the provisions of said statute, however, does not, in the light of the record, require a reversal of this judgment.

An examination of the journal entry discloses that the trial court, although it does not in so many words so state, did in effect find that plaintiff was entitled to participate in the workmen’s compensation fund. A judgment, therefore, should have been pronounced by it, entitling plaintiff to participate in the workmen’s compensation fund, and to be paid in the manner provided by the Workmen’s Compensation Law, and thereafter the judgment so entered should have been certified by the trial court to the Industrial Commission.

It, therefore, occurs to us that this court should so modify the judgment in question as to bring it into harmony with the facts as found by the trial court and with the law as expressed in the statute. By so doing no substantial rights of the Marion Steam Shovel Company will be affected and substantial justice will be done. Section 11364, General Code.

This court has, of course, power to modify judgments and to remand a cause, with instructions.

We therefore conclude to and do hereby modify said judgment as herein pointed out, and the trial court is directed to certify said judgment, as modified, to the Industrial Commission, and the judgment, as so modified, is affirmed.

Judgment modified and affirmed.

Hughes and Crow, JJ., concur.  