
    The American Can Co. v. Hays.
    (Decided October 24, 1927.)
    
      Messrs. Dustin, McKeehan, Merrick, Arter é Stewart, for plaintiff in error.
    
      Messrs. Bernsteen S Bernsteen, for defendant in error.
   Vickery, J.

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county.

William J. Hays filed in the court below an appeal from the refusal to grant an award by the Industrial Commission for injuries which he claimed occurred to him while in, and during the course of, his employment. He made his application in due time to the Industrial Commission, and evidence was taken and hearings had, 'at the conclusion of which the Industrial Commission denied his application to participate in the fund. Within proper time a petition was filed in the common pleas court, or an appeal from the Industrial Commission’s refusal to allow him compensation.

At the hearing before the common pleas court and a jury a verdict in his favor was rendered. A motion for a new trial was filed and overruled and a judgment entered upon the verdict, and it is to reverse that judgment that error is prosecuted here. Several grounds of error are urged why this case should be reversed.

Section 1465-90, General Code, provides that on an appeal to the common pleas court the case shall be heard upon the same evidence that was introduced before the commission, and no further evidence shall be admitted. It seems that in the instant case the court of common pleas permitted to go to the jury the transcript of all the proceedings before the commission, and the defendant below, the American Can Company, sought to introduce evidence other than that contained in the transcript. This was objected to, and the objection sustained, and to this ruling defendant took an exception, and that is one of the alleged grounds of error.

It is urged on the question of an appeal that the word “appeal” was used with its ordinary signification as applied to proceedings in court, and that in the event of an appeal the ease should be tried de novo, and that all evidence pertinent to the issues could be received without regard to what was before considered. We have been shown a decision in the common pleas court (Van Allen v. Industrial Commission, 26 N. P. (N. S.), 179) which held that a statute which provided that the appeal should be heard on the evidence introduced before the commission, and no other evidence, was a misprint, and that “no” other evidence means “on” other evidence. It is a very ingenious piece of reasoning, but the trouble is that in that event there would have been no purpose .in amending the statute (109 O. L., p. 296), because so construed, the statute would in substance be the same as it was before amendment (108 O. L., pt. 1, p. 322).

Evidently the purpose of the Legislature was to limit the evidence in the case before the court to the same evidence that was introduced before the commission. There is a very able argument offered to support the doctrine that such a limitation would be inimical to our institutions, and that in an appeal case all the evidence that was germane to the issue should be admitted, and that the statute if it denied that right was in that respect unconstitutional.

It is rather singular that this statute has been before the courts a number of times, and evidence has been limited to the evidence that was introduced below, and the Supreme Court, in so far as we are informed, has not yet passed upon this question. We do not feel called upon, in the present case, to decide this question; that is, whether the statute is-constitutional or not. We do say we have no doubt that the Legislature intended to limit the evidence in the appeal case to that which was introduced before the commission, but we think that this case can be disposed of without deciding that question.

It will be noted that Section 1465-90 provides that the Industrial Commission shall certify with its answer a transcript of its record relating to the matter in which the appeal is taken, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant upon the evidence contained in such record and no other evidence. It will be noticed that under the statute, where there has been an appeal, it shall be the duty of the Industrial Commission to certify the record to the common pleas court, including all of its proceedings, but that the court, if it is tried to the court or the jury, if one is demanded, shall determine the issues upon the evidence that was introduced below, and no other evidence. Now, in the instant case it appears that the evidence that was introduced below was not the only thing offered in evidence, either by reading it from the transcript, or by having people testify as to what it was, if that would be proper, but the entire record, including the findings of the referees, or whatever you might call them, the arguments, the certificates, and everything that is contained in the transcript, that occurred at the trial, went to the jury.

Now we have been cited to the case of Industrial Commission v. Collela, 17 Ohio App., 301, in which case a motion to certify to the Supreme Court was overruled May 8, 1923, to the effect that all the evidence was introduced which was contained in the transcript and findings of the commission, and the Court of Appeals of Summit county held that this was proper. We do not so understand that case. In that case when the evidence was introduced, both direct and hearsay evidence was admitted, and the Court of Appeals properly held, we think, that whatever evidence, either proper evidence or hearsay evidence, that actuated and controlled the judgment of the commission, could and should be introduced in the common pleas court, with which we find no fault. But how does that affect the instant case? When the statute limited the trial of the action in the common pleas court on appeal to the evidence that was introduced below, we do not quite agree with the proposition that it meant legal evidence only. If the commission permitted the introduction of other evidence besides legal evidence, such as hearsay, which it permitted to govern its decision, such evidence could and should be introduced in the common pleas court on trial, when either party who claimed the benefit of such evidence should offer it, and, of course, if hearsay evidence is admissible or admitted, the court would be right in instructing the jury with respect to the carefulness with which they should consider hearsay evidence. We do not think the instructions in this respect in the instant case are subject to any criticism. But now what happened in the instant case?

The transcript of the proceedings of a hearing before the commission contained in the instant case a lot of things which were not evidence in the court below. There were the reasons given by a referee why in one instance he found against the plaintiff, and by another referee reasons why he found in favor of the plaintiff, and the certificate and everything that occurred in the transcript went to the jury over the objection and exception of the counsel for the American Can Company. Now, then, if that were prejudicial, it clearly was erroneous, because it permitted to go to the jury things which were not evidence, and the jury were permitted to find their verdict not upon the evidence, either legal evidence or hearsay evidence, or both, but upon what somebody who was not a witness should draw as certain conclusions, and the jury were permitted to have those conclusions in their deliberations. In this.case there was the finding of one of the referees for the appellant and it would have a very powerful effect in persuading a jury that the commission had turned down this claim when it should, as a matter of fact, in the opinion of one of its investigators at least, have been allowed.

We think, therefore, that the court permitted things to go to the jury in this case which might have an effect upon the jury to determine their verdict in favor of the plaintiff, when as a matter of fact such things were not evidence, either legal or hearsay, and hence the verdict of the jury was not founded upon the evidence that was introduced in the court below, but influenced by arguments and statements made by those who were not sworn, and who did not give evidence, which arguments and statements could not be regarded as either legal evidence of hearsay evidence or evidence of any character which could be introduced in court. So we think this case should be reversed, and it is reversed, without deciding the question whether or not any other evidence that was offered by either party, not included in the original hearing before the commission, should have been permitted to be entered.

The judgment will therefore be reversed, and the case remanded to the common pleas court for a new trial.

Judgment reversed and cause remanded.

Sullivan, P. J., and Levine, J., concur.  