Summary
holding that an injury to a city street sweeper was compensable because it resulted from an assault by a man who was upset with the employee for telling him that he had violated city code by sweeping dirt into the street
Summary of this case from Hart v. NCO Fin. Sys., Inc.Opinion
No. 18255
Decided June 3, 1924.
Workmen's compensation — Injuries in course of employment — Street cleaner assaulted for warning another of violation of ordinance.
Where one employed by a municipality as a street cleaner, while so engaged, tells a person who has swept dirt into the street, in violation of a city ordinance, that he is "violating said ordinance," whereupon the street cleaner, continuing his work, is violently assaulted from behind and injured by such person, without provocation, such injury is sustained "in the course of his employment" under the terms of the Workmen's Compensation Act.
ERROR to the Court of Appeals of Cuyahoga county.
The original action in this case was an appeal to the court of common pleas from the finding of the Industrial Commission of Ohio adverse to the claim for indemnity of plaintiff in error, disallowing it upon the ground that his disability did not result from an injury sustained in the course of his employment.
The facts necessary to a solution of the problem presented are set forth in the amended petition as follows:
"Plaintiff says that his disability did result from injury sustained in the course of his employment as hereinafter set forth, and the said finding of defendant was on a ground which went to the basis of his right, and that such finding denied to plaintiff the right to participate at all in the insurance fund of the state of Ohio. Thereupon, to wit, on March 3, 1921, he filed his appeal in this court, and thereafter, to wit, on March 30, 1921, he filed his petition herein according to the law in such cases.
"Plaintiff says that prior to and on the 23d day of October, 1920, he was employed by the city of Cleveland, Cuyahoga county, Ohio, as a street cleaner, and on said 23d day of October, 1920, at about 7:30 o'clock a. m. while in the course of his employment, to wit, cleaning a portion of Euclid avenue at a point opposite or near 327 Euclid avenue, in said city, one Edward Bell swept dirt into said street contrary to the ordinance that no dirt shall be swept into any street in said city. Plaintiff told said Bell that he was violating said ordinance. Section 705 of the city ordinance as compiled in 1921 is as follows:
" 'No person shall throw or deposit or permit to be thrown or deposited, any dirt, paper, filth, sweepings of any storehouse, shop or office, or any ashes, shavings, filthy water, offal, straw, wood, stones, earth, manure, refuse matter or rubbish of any kind whatever into any street, lane, alley, or public ground, or place used as street, lane, alley or public ground. (R. O. Section 1663)'
"Thereupon plaintiff continued his said work of cleaning said street, and said Bell approached him from behind and assaulted and struck him and then and there struck him several times in several places on his person, and one of said blows was in his left eye, which caused him severe injury, by reason of which he lost totally and permanently the sight of his said left eye.
"Plaintiff was at said time earning about $33 per week.
"Wherefore plaintiff prays that on the trial of this case the jury find that said disability did result from an injury sustained in the course of his employment and that the court enter judgment herein ordering the defendant to pay the plaintiff the maximum amount allowed by law for the loss of time from his employment by reason of such injury, and the total loss of one eye."
An answer which is simply a general denial was filed to the foregoing amended petition, and upon the pleadings thus tendering the issue the parties went to trial, at which time the following stipulation was entered into between counsel:
"By agreement of counsel it is stipulated that plaintiff may amend his petition, by adding in the next to the last line of the prayer, after the words, 'loss of,' the following: 'Time from his employment by reason of such injury, and total loss of.' "
The trial proceeding, the plaintiff was called to the stand, and upon the first interrogation addressed to him by his counsel the record discloses as follows:
"Q. What is your name?
"Whereupon counsel for defendant objected to the introduction of any evidence, on the ground that the petition herein does not state facts sufficient to constitute a cause of action, and also upon the ground that there is no jurisdiction conferred upon this court by this petition.
"Whereupon counsel for plaintiff was given leave to amend his petition.
"The Court: With reference to the second objection, I think with the amendment to the petition, Mr. Gilbert has performed all of the necessary preliminary steps. The objection to the introduction of evidence will be sustained on the other ground.
"To which ruling of the court counsel for plaintiff then and there duly excepted.
"The foregoing was all of the evidence offered by either party on the trial of this cause.
"Whereupon the court rendered its decision against the plaintiff and in favor of the defendant, as appears of record in the cause."
A motion for a new trial was interposed, which was overruled, and judgment was rendered in favor of defendant, the Industrial Commission of Ohio. Error was prosecuted to the Court of Appeals, which court affirmed the judgment of the court of common pleas, and error is now prosecuted to this court to reverse that judgment.
Mr. Gilbert Morgan and Mr. Edward W. McGraw, for plaintiff in error.
Mr. Edward C. Stanton, prosecuting attorney, and Mr. George C. Hansen, for defendant in error.
The paramount question in this case is whether or not the plaintiff sustained his injury in the course of his employment. The record discloses that he was employed by the city of Cleveland as a street cleaner, and that he was engaged in such work when the injury in question occurred.
There was no oral testimony taken, and the facts as averred in the petition are those upon which the decision of the legal proposition involved must be reached.
There is no allegation in the petition that the plaintiff attempted to argue, importune, coerce, or wrangle with the man Bell, who made the assault upon plaintiff; the averments in the petition simply being that "plaintiff told said Bell that he was violating said ordinance. * * * Thereupon plaintiff continued his said work of cleaning said street, and said Bell approached him from behind and assaulted," etc.
Now, the ordinance referred to by the plaintiff when he told Bell of the violation was Section 705 of the City Ordinances of Cleveland, as compiled in 1921, which provided as follows:
"No person shall throw or deposit or permit to be thrown or deposited, any dirt, paper, filth, sweeepings of any storehouse, shop or office, or any ashes, shavings, filthy water, offal, straw, wood, stones, earth, manure, refuse matter or rubbish of any kind whatever into any street, lane, alley or public ground or place used as street, lane, alley or public ground. (R. O. Sec. 1663.)"
The plaintiff in error was employed by his master, the city of Cleveland, to clean its streets and to keep them free from dirt, paper, filth, etc. To that end he was actually and physically engaged at the time of the assault upon him, and in furtherance of that duty it was not without the scope of his employment to call to the attention of persons who were depositing or throwing in the street "dirt, paper, filth, sweepings of any storehouse," etc., that they were violating his master's orders, as expressed in the city ordinance. As a cleaner of streets, and one employed for that purpose, all acts reasonably done by him looking toward the fufillment of the employment in which he was engaged were properly within the scope thereof, in so far as the Workmen's Compensation Law is concerned.
It is claimed that the plaintiff in error was not employed to enforce municipal ordinances, that such was the duty of the police, or other officials of the city. In so far as this record goes, he clearly was not endeavoring to enforce a city ordinance, or to threaten arrest, or to do more than simply tell the man Bell that he was violating the ordinance. This does not disclose any affirmative act outside the scope of his employment, and is not in conflict with Fassig v. State ex rel. Turner, 95 Ohio St. 232, 247, 116 N.E. 104, 108:
"It was plainly the intention of the framers of the amendment, and of the statute, to provide for compensation only to one whose injury was the result of or connected with the employment, and would not cover any case which had its cause outside of and disconnected with the employment, although the employe may at the time have been actually engaged in doing the work of his employer in the usual way."
We think that the injury to Delassandro was clearly the result of and connected with the employment, and that therefore the Fassig case does not preclude a recovery, as argued by the defendant in error. This is a remedial statute and should be liberally construed.
This view has been adopted by this court in several cases. Industrial Commission v. Pora, 100 Ohio St. 218, 125 N.E. 662:
"P., an employe of a manufacturing company that had paid its premiums in the workmen's compensation fund, was ordered by a superior to procure an implement, which was to be used by P. to assist such superior. The implement was located in the hands of another employe who had equal rights with P. to its possession. Request for possession was refused. An argument was had by the parties. No effort to obtain possession by violence was made by P., nor was there any conduct justifying any assault by the other employe. Thereupon P. was violently assaulted by such other employe, and died from the effects of the assault.
"Held: P. was injured in the course of his employment."
Industrial Commission v. Weigandt, 102 Ohio St. 1, 130 N.E. 38:
"While an employe in compliance with his duty was in the factory where he was employed going to his machine, he was struck in the eye and injured by a file which flew from its handle during a friendly scuffle for it by two other employes. Held: The injury was one occasioned in the course of the workman's employment within the Workmen's Compensation Law."
In other states this liberal construction upon the question of what constitutes the scope of employment in order to make a liability within workmen's compensation acts has been generally recognized in the decisions. The facts involved in these cases and the nature of the employment in which the workman was engaged are so varied that no attempt will be made to set out the circumstances under which the injuries were received. It is sufficient to say that the decisions indicate a liberal construction of the acts, the test generally adopted being whether or not the injury was sustained and occasioned by reason of the employment, or in furtherance of the employer's interests, or in the performance of acts reasonably connected therewith.
Being of opinion that the allegations of the amended petition filed herein disclose sufficient facts to show that the injury in question was received "in the course of employment," our conclusion is that it was error to deny plaintiff the privilege of introducing evidence.
The judgment of the courts below is therefore reversed.
Judgment reversed.
MARSHALL, C.J., ROBINSON, JONES, MATTHIAS and ALLEN, JJ., concur.
WANAMAKER, J., not participating.