
    Beach v. The Union Gas & Electric Co.
    (Decided March 18, 1935.)
    
      Mr. Ray Hicks and Mr. Jos. O. O’Connell, for plaintiff in error.
    
      Mr. C. 8. Weakley and Mr. William B. Ramsey, for defendant in error.
   Hamilton, J.

The question for consideration grows out of an application for compensation under the Workmen’s Compensation Law, and involves the construction of Section 1465-90, General Code, as amended in 111 Ohio Laws, 227.

The Union Gas & Electric Company was a self-insurer, having qualified to pay compensation direct.

Ike Beach, plaintiff in error, filed a claim with the Industrial Commission to consider and fix the amount of compensation to be paid to him by reason of injuries wbicb he claims to have sustained while in the employ of The Union Gas & Electric Company. His claim was rejected, and, upon a rehearing, the commission found he was not entitled to compensation.

Beach’s claim was filed January 9, 1930, and, upon the hearing on January 5, 1931, his claim was disallowed. Due notice was given to The Union Gas & Electric Company of the hearing. Within sixty days after receipt of notice of the rejection of the claim on the rehearing, plaintiff Beach filed his written notice of appeal in the Court of Common Pleas and filed his petition on appeal. But by mistake and inadvertence he made the Industrial Commission of Ohio sole defendant and caused summons to issue and be served on the Industrial Commission.

On March 7, 1933, some two years after the disallowance of the claim and the filing of the original petition on appeal, the plaintiff discovered his mistake and filed an amended petition on appeal, naming as defendant The Union Gas & Electric Company, and caused summons to be issued and served upon such company.

The Union Gas & Electric Company filed a motion asking the court to require the plaintiff to make his amended petition definite and certain by setting forth the time when the claim was disallowed on rehearing. This second amended petition was filed setting forth’ the time of the disallowance of the claim.

The Union Gas & Electric Company thereupon filed a special demurrer to the second amended petition. The court sustained one of the grounds of the demurrer. In the meantime plaintiff, the claimant, had dismissed the Industrial Commission of Ohio as a defendant, leaving the action standing as a suit against The Union Gas & Electric Company.

Upon the sustaining of the demurrer to the second amended petition the plaintiff filed a third amended petition, naming as defendants The Industrial Commission of Ohio, The Union Gas & Electric Company, and The Cincinnati Gas & Electric Company. No new service was made.

To the third amended petition The Union Gas & Electric Company filed a demurrer on the grounds: 1st. “That the Court has no jurisdiction over the subject-matter of the action.” 2nd. “That the action was not brought within the time limit for the commencement of the action.” 3rd. “That the third amended petition on appeal does not state facts which show a cause of action.” And, 4th. “The court has no jurisdiction over the person of defendant.”

The trial court sustained the demurrer on the ground that the action was not brought against the defendant, The Union Gas & Electric Company, within the time limit for the commencement of the action. The plaintiff Beach, not desiring to plead further, suffered judgment on the demurrer, and the court dismissed the defendants. Prom that judgment, error is prosecuted to this court.

Plaintiff, the plaintiff in error here, claims that the action was commenced by filing the appeal and by filing the petition in the Court of Common Pleas; that the same is a mere appeal to a new tribunal of an existing controversy or proceeding, to which the court may permit the making of new parties defendant necessary for a proper determination of the action.

The claim of The Union Gas & Electric Company, defendant in error, is that to commence the action the petition must be filed within the sixty days, making it under the facts in the case the party defendant; and. that failure to do this was a failure to commence the action within the time limit provided by law.

The wording of the statute, Section 1465-90, General Code, pertinent to the question involved here, is as follows:

“If the commission, after such hearing, finds that it has no jurisdiction of the claim and no authority to inquire into the extent of disability or amount of compensation claimed, then the claimant, within sixty days after receipt of notice of such action of the commission, may file a petition in the common pleas court of the county wherein the injury was inflicted, or in the common pleas court of the county wherein the contract of employment was made in cases where the injury occurs outside the state of Ohio. If the claimant is seeking compensation from the state insurance fund, the defendant in such action shall be the industrial commission and summons shall be issued to the industrial commission and also to the attorney general. If the claimant is seeking compensation from an employer who has qualified to pay compensation direct, as provided by section 1465-69, or from an employer who has failed to comply with this act, the defendant in such action shall be such employer, and summons shall issue to such employer. Further pleadings shall be had in accordance with the rules of civil procedure.”

The meaning of this statute is not entirely clear. The statute says: “the claimant * * * may file a petition in the common pleas court of the county wherein the injury was inflicted.” It does not follow this statement immediately with the provision as to who the defendants should be. Thus far it would seem to be an ex parte proceeding on appeal, to permit the Common Pleas Court to review the action of the Industrial Commission. However, the section does provide that “if the claimant is seeking compensation from the state insurance fund, the defendant m such action shall be the industrial commission, and summons shall be issued to the industrial commission and also to the attorney general.” Then follows the provision: “If the claimant is seeking compensation from an employer who has qualified to pay compensation direct * * * the defendant in such action shall he such employer and summons shall issue to such employer.” (Italics ours.)

The substance of the section, reasonably construed, is that within sixty days the plaintiff may file a petition in the Common Pleas Court, making the employer, if a self-insurer, the defendant in such action, and that summons shall issue to such employer. From this it seems that for the claimant to get his case properly filed the intention of the legislature was that the petition should make a proper party defendant. This is suggested by the next phrase, which provides: “Further pleadings shall be had in accordance with the rules of civil procedure.” Unless made a party defendant the employer would not be in a position to answer the petition.

The section also suggests that the proceeding is a new action by the use of the words “in such action.” To commence an action it is necessary that there be a proper defendant, and summons caused to be issued thereon.

The petition on its face shows that an action was brought against the Industrial Commission within sixty days following the rejection of the plaintiff’s claim by the Industrial Commission. Counsel for plaintiff in error stress strongly in the brief that this is not a new action, but is merely an appeal from a finding of an administrative body, and that the filing of the petition against the Industrial Commission was sufficient to meet the sixty-day limitation under the statute. We cannot, however, overlook the fact that the law itself suggests the proceeding to be a new action, by stating “the defendant in such action shall be such employer.” (Italics ours.)

In view of the proceedings provided for in the Workmen’s Compensation Act for the filing of a claim for compensation, and for the method of enforcing payment of any sums allowed, why the legislature should have provided for an adversary proceeding on appeal to the Common Pleas Court, and provided who should be the defendants, is difficult to understand, but it having done so the court can but carry out the provisions of the legislative act.

Our conclusion is that the Court of Common Pleas was correct in sustaining the demurrer to the third amended petition on the ground stated, and that judgment is therefore affirmed.

This judgment is in conflict with the judgment of the Court of Appeals of the Sixth Appellate District in the case of Valacek v. Industrial Commission, 13 Ohio App., 17. While the same Court of Appeals receded from its decision in the Valacek case in Larimore v. Perfect, Admr., 45 Ohio App., 136, 186 N. E., 739, the Valacek case was not reviewed by the Supreme Court, and is not mentioned in the Larimore case. We will, therefore, certify the instant case to the Supreme Court for review and final determination as being in conflict with the decision in Valacek v. Industrial Commission, supra.

Judgment affirmed.

Ross, P. J., and Matthews, J., concur.  