
    Industrial Commission of Ohio v. Gray. Industrial Commission of Ohio v. Gadd. Industrial Commission of Ohio v. Jacobs.
    (Decided May 4, 1931.)
    
      Mr. Gilbert Bettman, attorney general, Mr. R. R. Zitrmehly and Mr. Z. G. Morgenthaler, prosecuting attorney, for plaintiff: in error.
    
      Mr. Marry S. Wonnell, for defendants in error.
   Boss, P. J.

These three cases involve the same questions and are considered together. In each case a demurrer was filed to the petition and overruled. The Industrial Commission prosecutes error to this action of the court; this being the sole question presented by the petitions in error.

The petition alleges in two of the cases that the deceased, and in the third case that the plaintiff, was an employee of and in the service of the village of Seven Mile, Butler county, Ohio, and under contract of hire with said village, which had complied with the provisions of the Workmen’s Compensation Law of the state of Ohio previous to the date upon which such employees suffered death or injury, and had contributed to the state insurance fund the amount of premiums determined and fixed by the Industrial Commission of Ohio, and as provided by law.

The petition continues:

“Plaintiff further says that on the 20th day of June, 1925, in Butler county, Ohio, the said Wilbur F. Jacobs, now deceased, while in the performance of his duties tinder his said contract of hire with said village of Seven Mile and while in the course of his employment with said Village, was shot in the head and instantly killed by reason thereof.”

It is claimed that these petitions fail to allege that the injury or death of the employee arose out of and was the result of the employment. Paragraph 5 of the syllabus in the case of Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St., 232, 116 N. E., 104, is as follows:

“The provisions in Section 35, Article II of the Constitution, and in the statute with reference to an injury received in the course of employment refer only to an injury which is the result of or arises out of the employment. Such provisions do not cover any injury which has its cause outside of and disconnected with the employment, although the employe may at the time have been engaged in the work of his employer in the usual way.”

The difficulty presented is caused by the unfortunate use in the petition of the word “while.” Had this been omitted, the language would have been the same as that used in the Constitution. Article II, Section 35 of the Constitution, and Section 1465-68, General Code. And while the requirements of proof announced in Fassig v. State, ex rel., supra, would have applied, we should have no difficulty in holding the language used sufficiently broad to include an allegation that the injuries arose out of and were the result of the employment.

"We, however, do not approve such pleading, holding that, even under the liberal construction of pleadings applicable, good practice requires a definite statement conforming to the requirements laid down in the case of Fassig v. State, ex rel., supra. A broad allegation such as that suggested would be subject to a motion to make definite and certain.

The word “while,” adopting a strict construction, of the petition, means simply that the employees met injury or death during the time they were employed as alleged. They may or may not under such a loose statement have been injured, by reason of or as a result of this employment. Strictly speaking, they may have been far removed from their employment “while” so employed. However, the expression has some vogue among those who speak carelessly, as connoting a meaning which would identify the injury as a result of the employment. It requires great liberality of construction to give the language used the desired construction. We are of the opinion that no error, prejudicial to the Industrial Commission, intervenes in giving such construction in considering a demurrer, in view of the fact that under the construction placed upon the act the person seeking the benefits of the act must prove that the injury was the result of and arose out of the employment. If the Industrial Commission was1 content to let such language pass by without motion, we feel that the provisions of the statute hereinafter noted require us to sustain the petitions against demurrers, especially as no bill of exceptions is presented which might indicate that substantial justice had not been done in the cases.

Section 11345, General Code, provides:

“The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties.”

Section 11364, General Code, provides in part as follows: “In every stage of an action, the court must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. No judgment shall be reversed, or affected, by reason of such error or defect.”

Section 1465-91, General Code, while applying only to proceedings before the commission, indicates the attitude of the Legislature as desiring no technical consideration to affect the rendering of substantial justice under the act, and we hold that, in view of the statutes above quoted, this intent should not be thwarted hy a rigorous construction of pleadings presented during the further prosecution of the claim by an employee or his beneficiary or representative.

We therefore hold that the demurrers were properly overruled, although we disapprove the loose language employed in the petitions.

The judgments in all three cases are affirmed.

Judgments affirmed.

Hamilton and Cushing, JJ., concur.  