As relevant, Section 35, Article II of the Constitution of Ohio, recites:
“* * * Such board [Industrial Commission] shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final; and for the purpose of such investigations and inquiries it may appoint referees. When it is found, upon hearing, that an injury, disease or death resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury, disease, or death, and paid in like manner as other awards * * *.”
Paragraph one of the syllabus of Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N. E. 484, holds:
“Section 35 of Article II of the Ohio Constitution, as amended in 1923, conferred upon the Industrial Commission of Ohio full power and authority to hear and determine ‘whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such board; ’ upon that question of fact the decision of the commission is final.”
“* * * Relator in an action in mandamus to compel the allowance of an additional award must show that the finding of the Industrial Commission against him amounts to an abuse of discretion.” State, ex rel. Berry, v. Industrial Commission, 129 Ohio St. 228, 194 N. E. 414. See, also, State v. Ohio Stove Co., 154 Ohio St. 27, at pages 36 and 37, 93 N. E. 2d 291, which emphasizes the point that it is the failure of the employer to comply with a specific lawful requirement which is the basis for the imposition of an additional award.
State, ex rel. Whitman, v. Industrial Commission, 131 Ohio *203St. 375, 3 N. E. 2d 52, 106 A. L. R. 72, makes it plain that an ‘ ‘ employer” within the contemplation of Section 35, Article II of the Ohio Constitution, is one who has failed to comply with a specific safety requirement, such case holding that a general contractor who did not construct faulty scaffolding, the use of which scaffolding caused injury to his employee, could not he successfully charged with a violation of a specific safety requirement.
Here, Eudy owned the elevator cage and was responsible for its condition and maintenance. Sweigart merely used the instrumentality with Eudy’s permission to facilitate his work for Eudy. There is nothing to show that Sweigart knew or had reason to believe that the construction and maintenance of the elevator cage violated parts of Bulletin 110. It would, therefore, seem unfair under these circumstances to punish Sweigart for a condition which he did not create and which he had no authority to alter or correct, and thereby place him in the category of an “employer” who failed to comply with a specific safety requirement within the intendment of Section 35, Article II of the Constitution.
There was no abuse of discretion on the part of respondent, and no clear legal duty rested on it to penalize Sweigart by ordering the payment of an additional award. This was the position taken by the Court of Appeals, and we agree therewith. It is well established that penalties are not favored in either law or equity and should be imposed only when clearly justified.
Therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
Taft, C. J., Matthias, 0 ’Neill, SchNeider and BbowN, JJ., concur.