
    The A. A. Lane Construction Co. v. Industrial Commission of Ohio et al.
    
      (Decided October 2, 1931.)
    
      Messrs. Thompson, Mine & Flory, Mr. Robert F. Maskey and Mr. G. W. Sellers, for plaintiff.
    
      Mr. Gilbert Bettman, attorney general, and Mr. R. R. Zurmehly, for defendants.
   Allread, P. J.

This is an action in equity, and is directed against an order and judgment of the Industrial Commission. It appears that a scaffold upon which three employees of the plaintiff, the A. A. Lane Construction Company, were working, collapsed, and that two of such employees were killed and one seriously injured. Applications were made to the Industrial Commission for ordinary compensation, which were allowed. There were applications for additional compensation made, based upon the charge of a violation of specific provisions as to the strength of the scaffolding. "When the applications for additional compensation came on for hearing before the Industrial Commission, one member of the commission declined to act for the reason that he had formerly been in the employ of the plaintiff, one member voted in favor of the allowance of the additional claims, and .another member voted against such allowance, so that a majority of the board was not committed upon the allowance. The case then lay in the Industrial Commission for about three years, when a board composed of new members took up the claims, and, after considering the record, allowed the additional claims. This was done without actual notice to the present plaintiff. After the awards were made, notice issued to the employer who thereupon asked for a rehearing. A rehearing was had, which resulted in the finding in favor of the employees. There were also orders issued that an assessment he made against the plaintiff covering the additional award, and that the plaintiff be denied any rights to coverage.

The plaintiff thereupon brought this suit.

The case was tried in the court of common pleas and resulted in a dismissal of the petition. From this judgment the plaintiff appeals to this court.

The case is submitted upon the evidence taken in the court of common pleas, and the case has been fully argued in this court.

Several questions have been made by counsel for the plaintiff in favor of the right of a court of chancery to grant relief. We approach this question upon the theory that a court of chancery has only jurisdiction to determine the validity of a judgment of the Industrial Commission upon questions of law, and has no such jurisdiction as to questions of evidence. Slatmeyer v. Industrial Commission, 115 Ohio St., 654, 155 N. E., 484.

With this authority in mind we proceed to the questions presented by the plaintiff. It is claimed that the Industrial Commission had no authority after its members had disagreed to again take up the case without actual notice to the plaintiff. Upon this proposition we are of opinion that the Industrial Commission is a continuous body, and that a ease once pending remains pending in that court until it is decided. The Industrial Commission, therefore, in 1930, had the right to take np the claims and determine their validity. The plaintiff claims that the Industrial Commission in making its order considered illegal evidence, to wit, the reports of McMurchy and also the report of Professor Morris of the engineering department of Ohio State University. These reports it is claimed contained evidence which was incompetent in view of the manner of its introduction. It may he true that the reports of McMurchy and of Morris contained incompetent evidence, but upon the rehearing which was granted we are of opinion that the plaintiff had the right to call these witnesses for cross-examination, or to otherwise test the right to receive this so-called secondary evidence. The application for rehearing having been heard without an exercise of this right or objection to the improper testimony, we reach the conclusion that there was no prejudicial error.

The next claim of the plaintiff in error is to the effect that there was no violation of a specific order of the Industrial Commission. This claim arises under Section 83, note 3, and Section 114, of the requirements of the Industrial Commission. Section 83, note 3, provides:

“Masons’ pole scaffolds over seven feet wide or over 64 feet high shall be built with a factor of safety of four and to conform to the general provisions for masons’ scaffolds relative to guard rails, toe boards, side screens and overhead protection.”

Section 114 provides:

“Scaffolds, used for construction purposes other than those particularly provided for in this code, shall be of material and construction to provide a factor of safety of four (4) and to generally conform to corresponding material and construction requirement of this code.”

It is claimed that neither of these sections is such a distinct provision as to come within the charge of “specific violation.” Upon an examination of these sections we reach the conclusion that there is such a specific requirement, providing for “a factor of four (4),” and that a violation of the provisions of Section 114 is so specific as to justify the action of the Industrial Commission. Ohio Automatic Sprinkler Co. v. Fender, 108 Ohio St., 149, 141 N. E., 269, especially Syllabus 2. Whether the violation is sufficient to invoke the jurisdiction of the Industrial Commission was a matter of evidence which that board had a right to determine. After reading the record taken before the Industrial Commission, we reach the conclusion that there was some evidence to justify their decision. The photographs taken of the injured putlogs, and the testimony showing the circumstances of the accident, are sufficient to show some departure of the plaintiff from the requirements of Section 114, and, inasmuch as the decisions of our Supreme Court hold that all questions of evidence must go to the Industrial Commission, and cannot be challenged by the employer in an independent case, we reach the conclusion that the order of the Industrial Commission is justified by the evidence.

It is claimed that the order of the commission made on January 3, 1931, directing that the additional awards he paid from the state fund, is invalid. We reach the conclusion that this order was made within the jurisdiction of the Industrial Commission. State, ex rel. Croy, v. Industrial Commission, 122 Ohio St., 65, 170 N. E., 644; State, ex rel. Thompson, v. Industrial Commission, 121 Ohio St., 17, 166 N. E., 806; State, ex rel. Davis, v. Industrial Commission, 118 Ohio St., 340, 161 N. E., 32. The fact that the plaintiff is a solvent employer makes no difference as to the jurisdiction of the Industrial Commission. It is claimed that this action is the only remedy which the plaintiff has to review the judgment of the commission. It may be true, as decided in the Slatmeyer case, that the plaintiff has the remedy provided for by injunction where questions of law only are at issue, but, as to the evidence, we think that it has no such remedy. We are therefore of opinion that the plaintiff has no right to interpose a suit in injunction against the findings and orders of the Industrial Commission, and that his petition must be dismissed.

Petition dismissed.

Hornbeck and Kunkle, JJ., concur.  