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Action by David H. De Armond, trustee, against the City of Hamilton and others. On appeal. Decree in accordance with opinion. -[By Editorial Staff.]

Paul Scudder, of Hamilton, for plaintiff. L. J. Ziliox, City Sol., and Harry J. Koehler, Jr., both of Hamilton, for defendants.

CUSHING, J. Plaintiff, the owner of a number of lots in Highland Park subdivision in the city of Hamilton, prosecutes this action to enjoin the city from collecting an assessment for a sanitary sewer.

Two petitions were filed with the counsel of said city, requesting the improvement. The first was filed June 18, 1919, and is: "To the Honorable City Council, Hamilton, Ohio-Gentlemen:

"We, the undersigned, being the owners of all the property abutting on the west side of Eaton avenue from the alley south of Cereal avenue to Highland avenue, and on the north side of Cereal avenue from Eaton avenue to Park avenue, and on the east side of Park avenue from Cereal avenue to Highland avenue, and on the south side of Highland avenue from Park avenue to Eaton avenue, on both sides of Haldeman avenue from Park avenue to Eaton avenue, on both sides of Dick avenue from Cereal avenue to Highland avenue, on both sides of Marcia avenue from Cereal avenue to Highland avenue, on both sides of Emerson avenue from Cereal avenue to Highland avenue, on both sides of Haven avenue from Cereal avenue to Highland avenue, and on both sides of Lawn avenue from Cereal avenue to Highland avenue, hereby respectfully petition your honorable body to construct sanitary sewers on the easement indicated on the plat of the above-described property, known as Highland Park. We also respectfully petition your honorable body to improve the aforesaid streets with permanent pavements, including the necessary curbs, gutters, and sidewalks, and that so much of the entire cost and expense thereof as may be lawfully assessed upon the adjacent, contiguous, or other specifically benefited lots and lands be assessed by the foot front or according to benefits upon the lots and lands bounding and abutting on said streets between the points aforesaid; said assessment to be in semiannual installments or in cash, at the option of the owner of the property assessed, in the manner provided by law for the levy and collection of special assessments.

"And, in consideration of the making of said improvements as herein petitioned for, we do hereby waive the limitation of assessment as provided by section 3819 of the General Code of Ohio, limiting assessments to the special benefits conferred upon the property assessed and limiting assessments for any and all purposes within a period of five years to 33% per cent. of the actual value after the improvement was made."

The pertinent part of this petition is the waiver contained in the last paragraph, waiving the limitation of assessment as provided in section 3819 of the General Code.

"To the Council of the City of Hamilton, State of Ohio:

"We, the undersigned, being owners of all the property abutting on Haldeman avenue between Eaton avenue and Main street, hereby respectfully petition your honorable body for the improvement of said street between Eaton avenue and Main street, by paving the roadway thereof with a permanent material, and constructing sidewalks, curbing, guttering, sanitary sewers, house connections, and water service connections, where necessary, and that the entire cost of said improvement be assessed by a percentage of the tax value thereof, or in proportion to the benefits, or by the front footage that will result from said improvement upon the lots and lands bounding and abutting upon said Haldeman avenue' between the points aforesaid.

"And the undersigned and each of them consent and request that said assessments be levied and collected without reference to the value of the property of subscribers hereto, and waive all benefits of the statute limiting assessments to thirty-three and one-third per cent. of the actual value of the property assessed; said assessments to be payable in 20 annual installments, proportioned to the whole assessment, or in cash, at the option of the owner of the property, assessed, in the manner provided by law, for the levy and collection of assessments."

This petition contains a waiver of the limitation of assessments under the statute, and adds, "said assessments to be payable in 20 annual installments."

In 1923, council of said city passed an assessing ordinance, making the assessments payable in 10 annual installments on the following lots: 13746, 16739, 16751, 16752, 16753, 16766, 16778, 16782, 16796, 16808, 16809, 16813, 16841, 16911, 16912, and 16920.

The question is whether these assessments can be collected in 10 annual installments under the petitions; or whether the condition, made a part of the waiver, must be followed. If not, the only assessment that can be collected is that provided by statute.

The case of Winchell v. Village of Dennison, 5 Ohio App. 103, states:

"The petition presented to council was in the nature of the offer or proposition in a contract."

[1] On the other hand, if the petition is considered a conditional waiver, the case of Roebling v. City of Cincinnati, 102 Ohio St. 460, 132 N. E. 60, would apply. The court in that case said, in part, that the assessment may be levied, depending upon a construction of the subject-matter of the petition, and in determining this the language used must be strictly construed against the municipality, and in favor of the petitioner.

Section 3911, General Code, also provides that "proceedings shall be strictly construed in favor of the owner of the property assessed," etc.

The petitioners agreed to waive in case

The second petition was filed May 3, 1922, the assessments were payable in 20 annual

(161 N.E.)

payments were to be made in 10 annual installments.

[2] There was no limitation as to the property described in the petition of 1919, and as to that property the petition will be dismissed.

[3] The limitation in the petition of 1922 not having been complied with by council, the injunction will be granted as to that property.

A decree may be prepared accordingly.
Decree accordingly.

HAMILTON, P. J., concurs.

(27 Ohio App. 169)

INDUSTRIAL COMMISSION OF OHIO v.
MONROE.

in the court of common pleas of Lawrence county in favor of defendant in error in an action brought by him against plaintiff in error on an appeal, under favor of the provisions of section 1465-90, General Code.

The facts involved are substantially as follows: On the 18th day of November, 1921, Monroe, while employed as a coal miner, received an injury from a piece of coal which hit him in the left eye. On December 2, 1921, Monroe filed an application with the Industrial Commission for compensation on account of said injury. This application was acted on favorably to Monroe, and such proceedings were finally had that on May 15, 1922, the commission found that Monroe had lost 75 per cent. of the vision of the left eye, so injured, as aforesaid, and thereupon made a final award for said injury for the maximum amount per week allowed by the statute, said award to continue for the term of 75 weeks. Section 1465-80, General Code.

Court of Appeals of Ohio, Lawrence County. No further proceedings were had until Feb

Nov. 17, 1927.

1. Master and servant ~417(41⁄2)—Appeal may be taken within 30 days from commission er's action on application of compensation claimant for modification of original award (Gen. Code, § 1465-90).

Where compensation claimant was awarded compensation for injuries to an eye, his subsequent application for further compensation, though designated as one for modification of original award, was in fact a new application, and from commissioner's action thereon claimant could take an appeal under Gen. Code, § 1465-90, within 30 days; the right to appeal not being denied because application for modification was not filed within 30 days after original

award.

2. Master and servant 417(5)-Verdict for compensation claimant, "in the sum of $12for life," held sufficiently definite, in view of full instructions to jury.

Where in compensation proceedings jury were fully and carefully instructed that amount allowed claimant should be a definite amount per week to be paid a certain length of time, held, that a verdict finding for plaintiff "in the sum of $12 for life" was sufficiently definite to support judgment for claimant.

Proceeding under the Workmen's Compensation Act by James B. Monroe for compensation for a personal injury. The court of common pleas awarded claimant compensation, and the Industrial Commission of Ohio brings error. Affirmed. [By Editorial

Staff.]

R. R. Zurmehly, of Columbus, for plaintiff

in error.

Irish & Riley, of Ironton, for defendant in

error.

MIDDLETON, J. This proceeding is prosecuted to reverse an award made by a jury

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The Industrial Commission granted hearing on this application and subsequently denied the same, from which disposition of the claim Monroe filed an appeal in the court of common pleas within 30 days from the day the application was denied. The case was then heard in the court of common pleas, and Monroe was allowed compensation by a jury for total disability.

[1] It was contended in that court, and is now contended here, that the court of common pleas had no jurisdiction to entertain the appeal for the reason that it was not made within 30 days from the day the commission had finally disposed of the claim. This contention is based on the theory that the finding and order of the commission made on May 15, 1922, was a final disposition of Monroe's claim for an award. It is urged that this position is supported by the case of Industrial Commission v. Glenn, 101 Ohio St. 454, 129 N. E. 687, wherein the Supreme Court held that the denial of an application for a rehearing, filed more than 30 days after the claim had been denied, was not the proper basis for an appeal. We cannot concur in this contention. If it is sound, then in all applications for a modification of an award, based upon conditions arising more than 30 days after the award has been made, the applicant is without any right of appeal, regardless of the action of the commission or

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the merits of his claim. Under the circumstances of the instant case, while the application is designated as one for a modification of the original award, it is in fact a new application, founded upon an additional disability not apparent at the time of the original award. When the application was made and granted, the commission reopened the whole matter. After it was reopened it is not disputed that the commission had power to make an award covering the newly discovered disability. If the commission had power to either allow or disallow compensation for this newly discovered disability, then it must follow that an appeal would lie from that action of the commission. We hold that the court of common pleas had jurisdiction on appeal.

[2] It is further urged in support of the petition in error that the trial court erred in permitting the jury to correct its verdict after it had returned the same and was excused from further consideration of the case. The verdict as first returned by the jury is as follows:

"We, the jury, being duly impaneled and sworn, find the issues in this case in favor of the plaintiff and assess the amount due the plaintiff from the defendant, the said Industrial Commission of Ohio, in the sum of $12

-for life."

Without stating in detail what was then done by the court, it is sufficient to say that this verdict, in our opinion, was sufficiently definite to support the judgment. The statute law provides that the award of the jury shall be a certain amount per week, and makes no further provision except as to the term for which said award shall continue. The court in its instructions to the jury followed the statute and carefully and fully explained to them that if they found in favor of the claimant they should allow a definite amount per week, to be paid for a certain length of time, to be determined by the nature and character of the injury suffered. So the jury were fully informed when they made their verdict that any amount they allowed was upon the basis of an award per week. Manifestly, therefore, when they fixed the sum of $12 for life, they intended and could only intend that amount to be paid per week, for life. This conclusion makes it unnecessary to discuss the legal effect of what was done by the court and the jury in an attempt to correct the verdict.

There are some further complaints made by the commission which we think are without merit, and are therefore overruled. We do not consider them supported by facts sufficient to justify any further discussion. Judgment affirmed.

SAYRE, P. J., and MAUCK, J., concur.

(118 Ohio St. 340)

STATE ex rel. DAVIS v. INDUSTRIAL COMMISSION OF OHIO. (No. 20699.) Supreme Court of Ohio. Dec. 21, 1927. On Rehearing April 18, 1928.

(Syllabus by Editorial Staff.)

1. Master and servant 351-Workmen's Compensation Law contemplates payment of Compensation regardless of employer's compliance with law.

Workmen's Compensation Law (Gen. Code, posite scheme having in contemplation payment §§ 1465-37 to 1465-108) constitutes one comof compensation to all employees of employers employing five or more workmen, whether employer has or has not complied with law.

2. Master and servant 4162-Employee held entitled to compensation out of surplus fund when either premium or award cannot be collected from insolvent employer (Gen. Code, § 1465-54, 1465-69, 1465-74, 146575 [111 Ohio Laws, p. 218]).

Gen. Code, §§ 1465-54, 1465-69, 1465-74 (111 Ohio Laws, p. 218), providing for payment of award from surplus in case it cannot materia with section 1465-75 (111 Ohio Laws, be collected from employer, construed in pari p. 218), providing for payment from surplus provides compensation to employee to be paid where employer has failed to pay premiums. out of surplus of state insurance fund, where employer has not complied with Workmen's Compensation Law, regardless whether Attorney General certifies that premium cannot be collected from insolvent employer under section 1465-75, or that award cannot be collected under section 1465-74.

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inability to recover premiums from insolvent employer held no defense to mandamus to compel payment of award from surplus fund (Gen. Code, § 1465-75 [111 Ohio Laws, p. 218]).

Proceedings under Gen. Code, § 1465-75 (111 Ohio Laws, p. 218), relating to collection of premiums from employers intended to recoup state insurance fund, is of no interest to employee whose claim for compensation rests on statute requiring payment out of surplus fund in case of employer's insolvency, and inability of Industrial Commission to conduct such proceedings is no defense to action in mandamus to compel payment of award out of surplus fund.

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(161 N.E.)

sion to pay award out of surplus fund as prescribed by Gen. Code, §§ 1465-54, 1465-74, 1465-75 (111 Ohio Laws, p. 218).

On Rehearing.

5. Master and servant 4162-Fifty per cent. penalty provided for against employers cannot be included in judgment requiring award to be paid out of surplus (Gen. Code, § 1465-74).

Under Gen. Code, § 1465-74 (111 Ohio Laws, p. 222), providing for payment of award out of surplus, 50 per cent. penalty provided for by 103 Ohio Laws, p. 82, § 27, against employer, could not be included in judgment provided for payment of award out of surplus.

Mandamus by the State of Ohio, on the relation of R. L. Davis, against the Industrial Commission of Ohio. Writ allowed.-[By Editorial Staff.]

Smoyer & Smoyer, of Akron, and Stanley S. Stewart, of Columbus, for relator.

Edward C. Turner, Atty. Gen., and R. R. Zurmehly, of Columbus, for defendant.

PER CURIAM. This is an action in mandamus instituted in this court. The petition of the relator contains the following facts: On May 27, 1924, the relator was an employee of an employer employing five or more workmen. The employer was not a subscriber to the state insurance fund nor a selfinsurer under the Workmen's Compensation Laws of the state. On the date aforesaid the relator received personal injuries while engaged in the scope of his employment. He made application to the Industrial Commission for compensation, and on the 21st day of November, 1924, the commission found that he had sustained the injuries complained of, and that the employer, employing five or more workmen at the time of the injury, was neither a self-insurer nor a subscriber to the state insurance fund. It found that the relator had suffered a temporary total disability for seven weeks, for which an allowance was made in the sum of $116.69, and a further allowance made in the sum of $1,667 for the loss of an eye, resulting from his injury.

Thereafter the Attorney General on behalf of the relator began an action in the Summit county court of common pleas against the employer to recover the compensation so awarded, together with a penalty on the amount awarded. This action resulted in a judgment against the employer in the sum of $2,675.53 on behalf of the relator. From that judgment no error or appeal has been prosecuted. The employer at the date of the judgment was, and ever since has been, insolvent and unable to respond to execution.

The petition further alleges that in compliance with the Workmen's Compensation Law, particularly section 1465-74, General

Code, the Attorney General certified to the commission his inability to collect the judgment, in whole or in part, and that, notwithstanding the foregoing facts, the commission has failed and refused to pay to the relator the amount of his judgment, or any part thereof, a duty which is claimed by the relator to have been imposed upon the commission by virtue of section 1465-54 and sections 1465-74 and 1465-75, General Code. It is alleged by the relator that the commission has in the surplus fund under its control more than sufficient to pay the judgment. The relator asks for a writ of mandamus commanding the commission to pay the relator the amount of said judgment and for all other and proper relief.

The commission filed an answer containing two defenses. In the first defense all of the facts contained in the petition are substantially admitted. The second defense pleads, in substance, that since May 17, 1927, because of the amount of work on hand, it has been unable to conduct the proceedings required of it under section 1465-75, General Code, and that its regular, daily work consists of such a vast number of hearings as to preclude giving attention to the relator's claim. The answer further alleges that the commission "will as soon as possible take the proceedings required by said section in connection therewith." The respondent asks that the alternative writ of mandamus heretofore issued be quashed and that the relator's petition be dismissed.

[1] The constitutional questions arising in this case were heretofore determined by this court in State ex rel. Williams v. Industrial Commission, 116 Ohio St. 45, 156 N. E. 101, and it is futile to rediscuss them at this time. It may, however, be briefly noted that our Workmen's Compensation Law constitutes one composite scheme, having in contemplation the payment of compensation to all employees of employers employing five or more workmen, whether such employer has or has not complied with the Workmen's Compensation Law of the state.

[2] Section 1465-54, General Code, provides for the creation and maintenance of a surplus fund. Section 1465-74, General Code, provides in substance that an "employee whose employer has failed to comply with the provisions of section 1465-69" may file his application with the commission for compensation, and that the commission may make an award to the claimant for such amount as he would be entitled to receive if his employer had complied with the law. The section thereupon requires the Attorney General to institute a civil action against the employer for the collection of the award, and, if the Attorney General certities that such award cannot be collected in whole, the section requires that "the award shall be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
161 N.E.-3

paid from the surplus created by section 1465 -54," etc. Sections 1465-74 and 1465—75, General Code, were contemporaneously passed by the General Assembly on March 26, 1925, and incorporated in the same act, 111 Ohio Laws, 218. The scheme of compensation thereby adopted and embraced in the two sections relates to the payment of compensation out of the surplus fund in cases where the employer has not complied with the compensation laws in respect to the payment of premiums. The act of March, 1925, comprising sections 1465-74 and 1465-75, General Code, embodied in its scheme of compensation both payment of premiums and compensation for injuries suffered "after January 1, 1923." In section 1465-75 reference is twice made to section 1465-74 of the same act, and construing both in pari materia they show a legislative purpose to protect, after January 1, 1923, the employee of an employer employing five or more workmen, where the employer had not complied with the Workmen's Compensation Law; and whether the Attorney General certifies that a premium cannot be collected from an insolvent employer under section 1465-75, or certifies that an award cannot be collected under section 1465-74, it is evident that the manifest intention of the General Assembly was to provide that in either case, after January 1, 1923, an employee who had suffered injuries should be compensated out of the surplus in the state insurance fund. other construction would tend to produce a legislative paradox.

Any

[3] One defense of the respondent in this case is that:

"It has been unable at any time since the 17th day of May, 1927, to conduct any of the

proceedings required by section 1465-75 of the General Code."

Those proceedings seem to relate chiefly to the collection of premiums from employers, and their main purpose is to recoup the state insurance fund by a recovery of premi-` ums in a suit brought by the Attorney General. The employee himself is not interested in the result of that suit. His claim for compensation rests upon the statute which requires payment out of the surplus fund in case of the employer's insolvency.

[4] As it is admitted by the pleadings that the judgment secured on behalf of the relator was rendered at the September term, 1925, and since about two years have elapsed without payment to the relator of the compensation secured by that judgment, it is our opinion that a writ should issue in favor of the relator for the payment of the award out of the surplus fund. The writ is allowed.

Writ allowed.

DAY, ALLEN, JONES, and MATTHIAS, JJ., concur.

On Rehearing.

JONES, J. The judgment in this case included an added penalty of 50 per cent. of the amount of the award. This feature was not called to our attention, either by brief or in oral argument, on the former hearing. Rehearing upon the 50 per cent. penalty phase was thereafter granted by the court.

Since the former submission of the case, this court has held that the 50 per cent. penalty clause was unconstitutional and void. Ohio, for benefit of Bredwell v. Hershner, 118 Ohio St. - 161 N. E. 334.

[5] Another and a persuasive reason exists for noninclusion of the penalty in the judgment, viz.: 103 Ohio Laws, p. 82, § 27, properly construed, authorizes recovery of a penalty against the employer only. No legislative purpose is expressed whereby the default of the employer is to be charged against the state and its surplus, fund. This is evinced by the language employed in section 1465-74, General Code (111 O. L. 222), which

specifically provides that the "award [not the penalty] shall be paid from the surplus,” etc.

The former decree of this court will be so modified as to require the writ to issue for the payment of the amount of the judgment, less the penalty, out of the surplus fund. Writ allowed.

DAY, ALLEN, KINKADE, and MATTHIAS, JJ., concur.

ALLEN, J. I concur in the judgment herein upon the sole ground that 103 Ohio Laws, p. 82, § 27, authorizes recovery of a penalty against the employer only.

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