
    Gaul v. Industrial Commission of Ohio.
    (Decided February 18, 1933.)
    
      Mr. J. F. Gholley, for plaintiff in error.
    
      Mr. J. W. Bricker, attorney general, Mr. B. B. Zurmehly and Mr. George N. Graham, for defendant in error.
   Lemert, J.

The parties herein stand in the same order as they stood in the court below. The cause comes into this court on error proceedings from the decision of the common pleas court of Stark county, Ohio, wherein the trial court, before the introduction of any evidence, sustained the following motion made by defendant below: “Now comes the defendant and moves the court for judgment in its favor upon the pleadings in this cause. ’ ’

The petition in error filed in this court by plaintiff in error, Lafayette Gaul, claims, as a principal ground of error, the sustaining of defendant in error’s motion. The facts are as follows: The plaintiff filed an application for compensation from the state insurance fund. Compensation was allowed, and thereafter further compensation was denied. Plaintiff then filed an appeal to the common pleas court of Stark county, and recited in his petition that the injury complained of, the same injury which is the basis of the present action, had caused him to sustain an impairment of his earning capacity, which impairment he would continue to suffer for the rest of his life; that the injuries were permanent; and that his earning capacity was impaired to the amount of $25 per week for such period, namely, the balance of his life.

The case was thereafter tried in the common pleas court, submitted to a jury, and a finding made by the jury that plaintiff had sustained an impairment of his earning capacity to the extent of $15 per week, and an award was made for compensation for partial disability, or impairment of earning capacity, at the rate of $10 per week for a period of eighty weeks. Judgment was rendered upon that finding, and the judgment was paid by defendant in error.

Thereafter plaintiff in error endeavored to supplement that judgment of the common pleas court by asking the Industrial Commission to grant him further compensation, which application was denied on the ground of the former adjudication. He then filed his appeal in the common pleas court alleging again, as in the former ease, that the injuries had caused an impairment in his earning capacity for the rest of his life, that the injuries were permanent, and that his earning capacity had been impaired to the extent of $25 per week.

These facts relating to the former adjudication were pleaded as a defense in this action, and upon motion of the Industrial Commission the common pleas court rendered final judgment in favor of the Industrial Commission on the ground that the cause had been litigated. In the present case, as in the former case, the facts as alleged by plaintiff below were denied by the defendant, and the issues were tried; or, in other words, the issue presented to the court below and now presenting itself to this court is: Should the plaintiff in error be allowed the right to prove twice that he was permanently and totally disabled? So, the question of res judicata at once presents itself in the instant case.

We quote from 34 Corpus Juris, at page 742, as follows:

“The doctrine of res judicata * * * may be stated as follows: (1) The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. (2) Any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject matter of the two suits is the same or not.”

We, therefore, conclude that such a judgment is final not only as to the matters which have been adjudicated in the cause, but to those which might have been adjudicated. If the plaintiff below was not satisfied with the result of his case, and felt that it was not properly presented, or that the judgment was not a proper one, his remedy was by way of error and not by way of a new cause of action, or, in other words, he cannot keep the benefits of the litigation and then try again to obtain something more by way of a new cause of action on the same issues.

Plaintiff relies upon the provisions of Section 1465-86, General Code, which relate to the continuing power of the Industrial Commission. That this principle does not apply to judgments is shown by the decision of our Supreme Court in the case of State, ex rel. Gavalek, v. Industrial Commission, 100 Ohio St., 399, 126 N. E., 317, wherein it was held:

“G., an employe of an employer contributing to the workmen’s compensation fund, being denied ‘any compensation at all’ by the Industrial Commission of Ohio, obtained judgment in a ‘lump sum’ on appeal duly prosecuted. No error proceeding was prosecuted by tbe commission.

“Held: Such judgment although erroneous is not void, and cannot be collaterally attacked by the commission. The lump sum judgment SO' rendered must remain as the final determination of the rights of the parties and is not subject to the provisions of Section 1465-86, General Code.”

To the same effect we find the decision of our Supreme Court in the case of State, ex rel. Willys-Overland Co., v. Clark et al., Indus. Comm., 112 Ohio St., 263, 147 N. E., 33, wherein it was held:

“1. When an application is made to the Industrial Commission, pursuant to the provisions of the Workmen’s Compensation Act, for an award to cover an injury alleged to have been received by an employee in the course of his employment, and the Industrial Commission rejects the claim, and an appeal from such order is perfected to the court of common pleas, pursuant to the provisions of Section 1465-90, General Code, and judgment is rendered against the claimant in that court, such judgment, until vacated or modified by the court entering the same, or reversed or modified by a higher court upon proceedings in error, is a complete and final adjudication against the validity of such claim.

“2. When the defendant in such appeal is the employer of the appellant, and the appellant, ignoring the judgment entered against him, seeks a rehearing of his claim before the Industrial Commission, and the Commission, also ignoring the judgment, grants his application, and makes an award in his favor, the employer is entitled to a writ of prohibition from this court restraining further action by the Commission in favor of the appellant.”

In this case the Supreme Court specifically held that judgment rendered against a claimant by a court, until vacated or modified by the court entering the same, or until reversed or modified by a higher court upon proceedings in error, “is a complete and final adjudication against the validity of such claim.” While it is true that in the instant case there was not an absolutely negative finding in the former adjudication, the finding that he was partially disabled, with the issue as it was before the jury, was a finding that he was not permanently and totally disabled.

It is to be noted in the State, ex rel. Willys-Overland case, supra, that the court therein says, at page 267: “Manifestly, the jurisdiction resting in the Commission by virtue of Section 1465-86, General Code, pending an appeal, is only a jurisdiction to be exercised in carrying into effect the final judgment of the court entered on appeal or on error, and such jurisdiction can have no force until set in operation by a remanding of the cause or a certifying of the result in court to the Commission, in order that the judgment as finally entered in court may be carried into execution by the agencies under the command of the Commission in more convenient form than this can be done by the officers of the court entering the judgment.”

This court, in an opinion in the case of Hibbs v. Industrial Commission, from Tuscarawas county, Ohio, held that the matter submitted was res judicata, and dismissed the action. Error was prosecuted to the Supreme Court. Motion to certify was overruled.

From a careful review of the record and all authorities submitted in the present case, we are of the opinion that the court below was right in sustaining defendant’s motion, and it therefore follows that the finding and judgment of the court of common pleas will be, and the same hereby is, affirmed.

Judgment affirmed.

G-arver, P. J., and Sherick, J., concur.  