Opinion
Decided February 6, 1928.
Workmen's compensation — Appeal to common pleas court — Section 1465-90, General Code — Evidence admissible in addition to that introduced before Industrial Commission.
Court of common pleas, on appeal from the Industrial Commission, may receive evidence other than that offered before Industrial Commission, notwithstanding Section 1465-90, General Code, in effect limiting evidence to that introduced before commission; such provision being ineffectual as denying litigant his proper rights in court after giving him the right to appeal.
ERROR: Court of Appeals for Cuyahoga county.
Mr. Guy R. Wheeler, for plaintiff in error.
Mr. John H. McNeal, for defendant in error.
This case comes into this court on a petition in error to the common pleas court of Cuyahoga county, and was brought here by the Industrial Commission of Ohio to reverse a judgment rendered in favor of Eva Sylva, plaintiff below.
The only question presented in the record is that in the court below plaintiff offered evidence other than that which was contained in the record made before the Industrial Commission of Ohio, which evidence was permitted to be introduced and was received by the court of common pleas. This was done over the objection of the Industrial Commission, to which ruling an exception was taken, and the only question raised in this court is that the court erred in permitting this evidence in contradiction of the statute, Section 1465-90, which provides, in effect, that on an appeal from the Industrial Commission to the common pleas court, the case shall be tried on the evidence which was introduced before the commission, and no other evidence.
This contention is no longer subject to question, because the Supreme Court, in the case of Industrial Commission of Ohio v. Hilshorst, 117 Ohio St. 337, 158 N.E. 748, held that this provision was ineffectual and unenforceable, because it denied a litigant his proper rights in the court after having given him the right to appeal. The syllabus of that case is as follows:
"1. That portion of Section 1465-90, General Code, as enacted in 109 Ohio Laws, 296, which provides that upon a trial of an appeal from a final order of the Industrial Commission denying a claim for compensation for injuries sustained in the course of the claimant's employment, the right of the claimant shall be determined `upon such evidence contained in the record and no other evidence,' is so inconsistent with the provision in the same section that the claimant shall be `entitled to a trial in the ordinary way, and be entitled to a jury if he demands it,' that it is irreconcilable therewith.
"2. Where different provisions of an act are in irreconcilable conflict, that provision which is most in harmony with the fundamental purpose of the statute must prevail."
This disposes of the entire question. As there are no other errors complained of in this record, the judgment will be affirmed.
Judgment affirmed.
SULLIVAN, P.J., and LEVINE, J., concur.