
    WARNER v INDUSTRIAL COMM.
    Ohio Appeals, 3rd District, Paulding County.
    No. 92.
    Decided April 16, 1942.
    Paul Spriggs, Paulding, for plaintiff-appellee.
    Thomas J. Herbert, Atty. Gen., Columbus; Edward W. Kuns, Paulding, for defendant-appellant.
   OPINION

By GUERNSEY, J.

This is an appeal upon questions of law from a judgment of the Court of Common Pleas of Paulding county, Ohio.

Plaintiff filed his petition in the Court of Common Pleas of Paulding county, Ohio, by way of an appeal from an order of the Industrial' Commission of Ohio wherein he was denied the right to participate in the benefits of the state insurance fund.

The defendant filed its motion for an order requiring the plaintiff to make his petition definite and certain in the following particulars, to wit: “To set forth in detail the manner in which plaintiff claims to have ‘injured his heart’ ”, This motion having been allowed, plaintiff filed his amended petition.

In his amended petition the plaintiff pleaded facts sufficient to show the existence of jurisdictional procedural requisites. He further pleaded: “That on the 27th •day of October, 1938, plaintiff was employed as a workman in the lumber yard of said firm of Brady Brothers, located in the Village of Payne, Ohio, and in the course of his employment he was engaged in the loading of lumber, cement and building supplies in trucks, and while so engaged in said employment and while in the act of loading said lumber, cement and building supplies in said trucks so injured his heart, resulting in an acute dilation of the left ventricle, that his general health was impaired and as a result of said injury he has ever since said date been unable to perform any kind of work or labor whatsoever. That said injury to plaintiff arose out of and was the result of such employment.”

To plaintiff’s amended petition the defendant filed its demurrer upon the ground that said amended petition did not contain facts sufficient to constitute a cause of action. The Court of Common Pleas overruled this demurrer, and defendant not desiring to plead further, the court entered judgment for plaintiff that plaintiff is entitled to participate in the state insurance fund, is entitled to recover his costs, with attorney fees to counsel in an amount equal to twenty per cent of the first five hundred dollars of any award made to plaintiff under the terms of the judgment and ten per cent of any sum awarded in excess of five hundred dollars, said fee, however, not to exceed the total sum of five hundred dollars, as provided by statute.

It is from this judgment this appeal is taken.

The defendant assigns error of the trial court in the following particulars:

1. In overruling defendant’s demurrer to plaintiff’s petition.

2. In rendering judgment in favor of plaintiff.

3. That the judgment of the court is contrary to law.

Under these assignments of error the defendant argues that the plaintiff in his amended petition has failed to allege facts showing that the injury complained of by plaintiff is a physical or traumatic injury, accidental in its origin or cause, the result of a sudden, extraordinary, unusual happening at a particular time.

Whatever right the plaintiff has to recover in the instant case is derived from the provisions of Sec. 35 of Article 2 of the Constitution of Ohio, the pertinent part of which reads as follows:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom”

and the provisions of the Workmen’s Compensation Act, passed pursuant to said constitutional provision, and particularly the section of said Act which has been designated §1465-68 GC, which, among other things, prescribes as follows:

“Every employee mentioned in §1465-61 GC who is injured * * * wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on or after January 1, 1914, shall be paid such compensation out of the state insurance fund for loss sustained on account of such injury * * * as is provided in the case of other injured i: * employees, and shall be entitled to receive such medical, nurse and hospital services and medicines * * * as are payable in the case of other injured * * employees.”
“Every employee mentioned in §1465-61 GC, who is injured, * “ * wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on or after January 1, 1914, shall be entitled to receive, either directly, from his employer as provided in §1465-69 GC, or from the state insurance fund, such compensation for loss sustained on account of such injury * * * and such medical, nurse and hospital services and medicines, * * 5 as provided by §§1465-79 to 1465-87, inclusive.”
“The term ‘injury’ as used in this section and in the workmen’s compensation act shall include any injury received in the course of, and arising out of, the injured employee’s employment.”

There is a further provision of the workmen’s compensation act, that the disability for which claim is made must have existed for more than seven days.

From an inspection of the provisions of §35 of Article 2 of the Constitution, above referred to, it will be noted that the injuries for which compensation is provided, are injuries “occasioned in the course of such workmen’s employment,” and that under the provisions of the workmen’s compensation act, and particularly §1465-68 GC, above referred to, “the term ‘injury’ as used in this section and in the workmen’s compensation act, shall include any injury received in the course of, and arising out of, the injured employee’s employment.”

It will be noted that neither said constitutional provision nor said workmen’s compensation act prescribe any requirement that the injury for which compensation is provided, shall be a physical or traumatic injury, accidental in its origin or cause, the result of a sudden, extraordinary, unusual happening at a particular time, although the Supreme Court of Ohio has definitely, in a series of cases, established that such requirement is implied in said constitutional provision and said Act, and that proof that the injury for which compensation is claimed is physical or traumatic and accidental in its origin or cause is essential to a recovery. Goodman v Industrial Commission, 135 Oh St 81; Industrial Commission v Franken, 126 Oh St 299; Industrial Commission v Lambert, 126 Oh St 501; Industrial Commission v Roth, 98 Oh St 34; Industrial Commission v Palmer, 126 Oh St 251; Terzine v Industrial Commission, 31 Abs 601.

The Supreme Court, however, has never passed on the question as to whether it is necessary, on an appeal from an order of the industrial commission denying the right to compensation, to the Common Pleas Court, to plead facts showing the injury to be a physical or traumatic injury, accidental in its origin or cause, the result of a sudden, extraordinary, unusual happening at a particular time.

In the per curiam in the of Miles v Auto-Lite Co., 133 Oh St 613, at page 615 it is stated:

“The trial in the Court of Common Pleas is in the nature of an appeal from the Industrial Commission. When the action is filed in the Court of Common Pleas the record of the evidence has already been made. The only purpose of the pleadings is to properly start the action, give due notice by summons to the defendant, whether it be the Industrial Commission or the employer, and to set forth concisely the character of the action involved. Since the only purpose of the trial in the Court of Common Pleas is to ‘determine the right of the claimant to participate or to continue to participate in such fund’ from the evidence contained in the transcript, the issue in reality has already been made. As set forth in §1465-90 GC, the law has defined that issue to be the ‘right ■of the claimant to participate or to continue to participate in such fund.’ If there be questions relating to procedure or jurisdiction, which the defendant wishes to raise, timely objection, by motion or other objection, should be made before the introduction of evidence.”

It would seem that under this liberal holding, that upon appeal to Common Pleas Court the issue in reality has already been made from the evidence contained in the transcript, a general demurrer would not lie to a petition. But the Supreme Court, in the case of Vogt v Industrial Commission of Ohio, 138 Oh St 233, without noticing or commenting upon the last mentioned case, held that a general demurrer did lie to such petition.

However, in the Vogt case the petition, to which demurrer was sustained, did not allege the facts prescribed by the constitutional provision and the statutes mentioned, as essential to a recovery, but on the contrary alleged facts showing that the injury for which compensation was claimed, was not a physical or traumatic injury, accidental in its origin or cause, the result of a sudden, extraordinary, unusual happening at a particular time, which, under the decisions hereinbefore mentioned, precluded plaintiff from recovering.

In the petition in the instant ease it is alleged that the plaintiff was employed as a workman in the lumber yard of a firm which had contributed to the state fund created by compulsory contribution thereto by employers, and in the course of his employment was engaged in the loading of lumber, cement and building supplies on trucks, and while so engaged in said employment and while in the act of loading said lumber, cement and building supplies in said trucks so injured his heart resulting in an acute dilation of the left ventricle, that his general health was impaired and as a result of said injury he has ever since said date been unable to perform any kind of work or labor whatsoever. It is further alleged in the petition that said injury to plaintiff arose out of and was the result of such employment. The time of the injury, to wit, October 27. 1938, is also alleged.

In the instant ease the amended petition therefore alleges all those facts which the constitutional provision and the statutes mentioned name as the basis for the right to recover conferred by them, the allegation “that the plaintiff has ever since said date (October 27, 1938) been unable to perform any kind of work or labor whatsoever” being sufficient to charge that the injury complained of has resulted in the disability extending more than seven days.

It has been universally held that in a criminal pleading, where statute creates an offense and sets out the facts which constitute it, an indictment or information that followed the language of the statute is good. The same rule of pleading should, and does, apply in civil actions.

In 40 C. J. at page 152, under the subject of pleading, it is stated:

“No recovery can be had under a statute unless plaintiff alleges exactly those facts which the statute names as the basis for the right conferred, but only such facts as the statute itself sets forth as the circumstances under which an action may be maintained need be alleged. In stating the cause of action which is derived from the statute it is not necessary in alleging the facts which bring plaintiff within it, to use the exact words of the statute; words of equivalent import are equally proper. The exact words of the statute may, however, be used and are generally sufficient.”

' It is only necessary to allege in a complaint under a statute, those facts and acts which the statute itself sets forth as the circumstances under which an action may be brought. Upon a general demurrer the plaintiff will be deemed to allege every fact which can by reasonable and fair intendment be implied from its statements. Sanders v Soutter, 126 N. Y. 193, 27 N. E. 263; Zebleyv v Trust Company, 139 N. Y. 461, 34 N. E. 1067; Rosselle v Klein, et al, 59 N. Y. S. 94.

The right to recover in the instant case was derived from and based upon statute, and the plaintiff in his amended petition alleged all the facts and acts which the statute itself sets forth as the circumstances under which an action may be brought.

Under the authorities mentioned, upon a demurrer the petition will be deemed to allege every fact which can by reasonable and fair intendment be implied from its statements, including facts conforming to the requirement which the Supreme Court has found implied in the statute that the inury complained of is a physical or traumatic injury, accidental in its origin or cause, the result of a sudden, extraordinary, unusual happening at a particular time.

While the petition was subject to a motion to make it more definite and certain, it did, as against a general demurrer, state a cause of action under the governing statute.

This being the case, the court did not err in overruling the demurrer and in entering judgment in favor of plaintiff, upon the demurrant not desiring to plead further, and its judgment will therefore be affirmed.

KLINGER, PJ., & CROW, J., concur.  