State ex rel. Duffy v. Meyer

By GEIGER, J.,

Dissenting.

I must dissent. In drafting the original opinion, which was not agreed to as a majority opinion, but a large part of which is adopted and approved I stated in conclusion:

“The most that can be said under any view of the evidence is that on Saturday afternoon, after his usual hours of work for the Meyer Brothers were completed, and in order to be present at a conference which might have relation to his future employment, Creager drove to the place of business and during his progress was killed, as any other traveler on the highway may have been. His accident did not arise during the course of his employment.”

I must adhere to this conclusion under the authority of the cases cited by me as appear in the body of the opinion.

Especially am I unable to avoid the authority of Commission v Gintert, 128 Oh St 129, at page 133, which is quoted at large in the opinion.

The statement of the court fits the case at bar like a glove. .

It must not be overlooked that the Gintert case overruled Inglish v Commission, 125 Oh St 494, where the facts seem to me to be much more favorable to the workman, than the facts at bar.

In overruling the Inglish case, and in reversing both lower Courts in the Gintert case, Matthias, J., on page 134, says in substance:

“We are fully persuaded, however, that the essential and basic principles of the Workmen’s Compensation as heretofore discussed, preclude compensation upon the undisputed facts in either case.”

If the basic principle of the law preclude compensation in either of these two cases, by what logic can it be held that the same basic principles allow compensation in the case at bar?

Paraphrasing the statement of Matthias, J., on page 133, the death of Creager was not caused by any equipment, tools or material in any wise connected with his employment, and the employment had no causal connection with the injury — either through its activities, its conditions, or its environments.

In the Gintert case, the teacher was killed by a collision with an interurban car, as in this case. She had in her possession papers incident to her employment which she was carrying from her home to her place of employment. It was customery for her tc carry her papers back and forth, in order that she might properly perform the duties of her employment. The same was done in the case at bar, except that the evidence is much weaker on the point that the accident herein occurred while the decedent was going to the place of employment, and was, as an incident of that employment, carrying on his person $5.00 for pay roll. The evidence is much stronger in support of the claim that all duties as to the pay roll had been fully discharged in the morning.

In the case of Frame v Industrial Commission, 30 Abs 362, this court had under consideration the right of a state employee to compensation out of the fund.

The opinion was by Barnes, J. While the case was decided under the “going to or from work” rule, the judge delivering the opinion made an examination *667of the decisions of the several Courts touching the right of the employee to recover under the facts controlling each .case.. He quoted at large from Commission v Gintert, supra, and discussed that case and the Inglish case which was overruled, as well as many other cases; among them Bonnett v Commission, 22 Abs 176, decided by this Court. We will not discuss further the Frame case or Judge Barnes’ opinion, but cite 4t as authority for the denial of compensation in the instant ease.

The majority takes the position that ¡the instant case involves factual questions, and there being supporting evidence, that the verdict should not be ■molested. The majority then comments upon the evidence.

I am of the opinion that the verdict in this case is manifestly against the weight of the evidence. Very rarely does a jury find against the claimant in actions against the Commission, and .1 am of the opinion that we should not hold these verdicts in too great reverence. We should exercise our own judgment, always, of course, having due, but not excessive, regard for the verdict.

In the Frame case, above alluded to, this Court reversed the judgment of the trial Court based upon the verdict.

The Gintert case reversed the action of the trial court. The Inglish case when overruled, implied a reversal of the judgment of the trial Court.

It must not be overlooked that the instant case is an action by the State to recover from Meyer Brothers, more than $4,000.00, which has been or will be paid to the widow of Creager — irrespective of the final judgment in this case. The action is brought against Meyer Brothers by reason of it being a non-conforming employer of three or more employees, under §1465-74 GC.

Meyer Brothers cancelled their state coverage upon the representation of Creager that it was not needed because, he not being an employee, the partnership did not employe three or more, and consequently was not liable. While it is true that the cancellation by Meyer Brothers of the State coverage, on the suggesttion of Creager, does not determine the facts or the law, yet where, as in this case, the widow has been or is to be compensated, we should scrutinize with great care the facts upon which the jury rendered its verdict, upon which the judgment m favor of the State was based.

It may be noted that the majority has cited, in support of its position, a number of out-of-State cases. I am not concerned with such cases, where the Ohio decisions clearly point the way.