
    The State of Ohio, Appellee, v. Lovely et al., a Partnership, d. b. a. Lovely & Brell Lumber Co., Appellants.
    (No. 4401
    Decided June 7, 1950.)
    
      
      Mr. Herbert 8. Duffy, attorney general, and Mr. Charles T. Kays, for appellee.
    
      Mr. Clinton D. Boyd, for appellants.
   Hornbeck, J.

This is an appeal from a judgment in favor of the plaintiff ag’ainst the defendants, based on an award in favor of Floyd Shouse. The defendants did not carry workmen’s compensation insurance but it was the claim of the state that they were amenable to the provisions of .the Workmen’s Compensation Act because they had three employees regularly employed in their business. The award made to Shouse was based upon his claim that he received an injury by having one of his hands amputated while working on a planer in a lumber yard operated by the defendants, and that the injury arose out of and occurred in the course of his employment. The defendants asserted .that they did not regularly employ three men in their business and that the injury which Shouse suffered did not occur in the course of his employment.

The cause was tried to a jury. The award of the Industrial Commission was offered in evidence, after which the defendants produced their testimony and the state produced its testimony. Upon submission of the cause, the jury returned a verdict for the plaintiff in accord with the award made by the Industrial Commission.

Defendants moved for a judgment notwithstanding the verdict and, that being overruled and judgment entered on the verdict, moved for a new trial, which, also, was overruled. On appeal to this court, nine errors are assigned.

' Except as to assignments Nos. 6 and 8 we are satisfied to say, without discussion, that they are not well made. Seven of the assigned errors were discussed Tby Judge Leach in his opinion overruling the motion for judgment non obstante veredicto, and we are in accord with his conclusions and reasons therefor. See State v. Liff, 86 Ohio App., 396, 87 N. E. (2d), 917.

The sixth assignment of error is that the court erred in refusing to give special request No. 4 before argument, as requested by defendants, and the eighth assignment is that the court erred in overruling the motion of the defendants for a new trial. If assignment No. 6 is well taken, so, also, is assignment No. 8.

Defendants’ requested special instruction No. 4 is:

“The court charges you that if Floyd Shouse was injured while operating a planing machine, which was no part of his duties and against the express order or orders of his employer, the defendants are not liable and your verdict must be for the defendants. ’ ’

If this charge embodied a correct statement of the law applicable to a material issue in the cause, it was prejudicial error for the trial judge to refuse to give it to the jury. Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94.

William Lovely, one of the partners, testified that Shouse’s duties were to keep lumber back, probably meaning from'the end of the planer opposite the cutting tool, and to load, unload and truck lumber. John Brell, the other partner, said that when Shouse went to work for the partnership “he was hired for just one thing, trucking and hauling lumber, the planer costs — too much money is involved to have somebody run it that didn’t know how to operate it,” and that “he was never supposed to operate the planer.” Miss Brell said that shortly before the accident she heard her father tell Shouse not to use the planer.

The testimony of Shouse is in direct conflict with that of these witnesses.

It is the claim of the defendants that, assuming the testimony of these witnesses for the defense to be true, the jury could not find that Shouse’s injury arose out of or occurred in the course of his employment because the operation of the planer was not one of his duties, that he was hired for a specific purpose which did not require the use of the planer, and that he was expressly instructed not to use it.

The plaintiff asserts that the charge is ambiguous in that it might be construed to mean that the court was saying as a fact that the operating of the machine was no part of plaintiff’s duties.

In support of the refusal to give the charge, plaintiff cites Laudato v. Hunkin-Conkey Construction Co., 135 Ohio St., 127, 19 N. E. (2d), 898, the first paragraph of the syllabus of which is:

“An employee who receives an injury while engaged in doing work he is employed to do, during the course of which he violates rules of his employer dealing with the method or manner of performing the work, will, notwithstanding such violation, be deemed to have been injured in the course of his employment.”

The distinction between the cited case and the instant case is that here, upon the testimony of the defense, the employee when injured was not engaged in doing the work that he was employed to do. He did not merely violate a rule respecting the use of the planer; he disregarded the duties which he was engaged to perform.

In the Laudato case Judge Day recognized the right of an employer to limit and define the scope of employment of his workmen, and at pages 130 and 131 made this observation:

“A distinction must be drawn between rules which define the sphere of employment and those which merely direct the manner in which work within the sphere is to be done. ‘There are prohibitions which limit the sphere of employment, and prohibitions which deal only with conduct within such sphere. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that the man has gone outside the sphere.’ 1 Honnold on Workmen’s Compensation, 390 et seq., Section 113.”

Here, if Shouse was employed only to truck and haul lumber, and there had been no change in the terms of the employment by permissive practice, he was outside the sphere of his employment if he operated the planer. We do not understand the expression, “sphere of employment,” to be so limited as to preclude such a holding. In the Laudato case, at the time of his injury the injured workman was engaged in the performance of a service clearly within the scope of his employment, although in so doing he may have been violating a rule of his employer. Here, upon the testimony of defendant’s witnesses, the employee, at the time of his injury, not only was violating an express instruction but was also engaging in an operation which did not arise from or occur in the course of his employment, which operation was not contemplated in the contract of employment.

The latest applicable case in Ohio is Georgejakakis v. Wheeling Steel Corp., 151 Ohio St., 458, 86 N. E. (2d), 594. The employee involved in that case, a common laborer whose principal duty consisted of transporting materials in and about the plant and sweeping floors of his employer, during a temporary, absence of an operator of a pressing machine attempted to operate such machine. In so doing, the fingers of his left hand were caught in the machine and severely injured. It is stated that some degree of skill and proficiency is required to operate a pressing machine, as is the case with a planer. The Supreme Court affirmed the judgment on a directed verdict for the defendant.

Judge Zimmerman, writing the opinion, on page 459, said:

“Here, the claimant was a laborer whose duties in and about the industrial plant where he was injured were limited in scope. When he voluntarily, deliberately and without authority or necessity stepped out of the orbit of his employment by attempting to operate the pressing machine — an undertaking altogether foreign to the work he was hired to do — he engaged in a pursuit and exposed himself to a hazard not contemplated by his employment as a laborer. His behavior constituted a material deviation and departure from his assigned tasks.”

Although Judge Hart dissented, he emphasized that: “Here, the claimant assumed without direction or authority the performance of work for which he had not been specifically employed. Neither had he been forbidden to operate the machine.”

In this latter particular the instant case is stronger in its facts than the cited case.

Outside Ohio an interesting case with facts analogous to ours is that of Eugene Dietzen Co. v. Industrial Board of Illinois, 279 Ill., 11, 116 N. E., 684, Ann. Gas. 1918B, 764. There are nine propositions in the syllabus, all of which are applicable to our question and might well be quoted, but to avoid undue length to this opinion we will not do so. That opinion is well written and can profitably be read.

The second paragraph of the syllabus of Industrial Commission v. Ahern, 119 Ohio St., 41, 162 N. E., 272, 59 A. L. R., 367, is:

“Under Section 35, Article II of our Constitution, and the law enacted pursuant thereto, the phrase, ‘in the course of employment,’ connotes an injury sustained in the performance of some required duty done directly or incidentally in the service of the employer. ’ ’

Unfortunately for the defendants, the charge, as framed, is ambiguous. The parenthetical phrase, ‘ ‘ which was no part of his duties, ’ ’ etc., if- given by the court, could have been construed as being an unqualified assertion that the operating of the planer was no part of the duties of Shouse and against the express order or orders of his employer. The charge should have clearly permitted the jury to resolve the disputed facts in a way essential to a verdict for the defendants.

The judgment is affirmed.

Judgment affirmed.

Miller, P. J., and Wiseman, J., concur.  