Opinion
No. 32225
Decided January 17, 1951.
Workmen's compensation — Code of safety requirements — Bucket conveyors excluded from regulation requiring means to disengage power — Penalty award for violation of specific requirement — Cancellation of unlawful order — Mandamus permissible remedy of employer.
1. Bulletin 110 of the Code of Specific Safety Requirements and General Safety Standards for Workshops and Factories excludes bucket conveyors from the operation of bulletin 203 of such regulations requiring that means be provided at each machine for disengaging it from the source of power by which it is operated.
2. Mandamus to require the Industrial Commission to cancel a finding and pay-in order against an employer, because of an alleged violation of a specific safety requirement adopted by the commission, is a permissible remedy where the order of the commission is unlawful and as a consequence constitutes an abuse of discretion.
IN MANDAMUS.
This is a mandamus action instituted in this court by the relator to compel the Industrial Commission to revoke, cancel and set aside its order to relator, under date of April 14, 1950, to pay into the treasury of the state of Ohio the sum of $2,625, and its previous finding that a violation of a specific safety requirement by the relator caused the death of Harry Carper, employee of the relator, which finding occasioned the pay-in order herein referred to.
The relator, The Marble Cliff Quarries Company, on January 29, 1949, was engaged in the operation of a ready-mix concrete plant in Columbus, Ohio. On that date Carper, its employee, while on a platform or structure located on one side of and extending above the top of the roof of the silo of the ready-mix concrete plant, fell or was caught in a bucket conveyor of the ready-mix concrete plant and precipitated to the ground, as a result of which he received fractures and hemorrhages from which he died.
Immediately prior to his death, Carper, while operating the bucket conveyor, disengaged it from its power source, in a ground floor room at the foot of the silo, that being the only point at which the power could be disengaged. He then climbed to the top of the silo and signaled his foreman on the ground to reengage the bucket conveyor machinery to the power source. Soon thereafter Carper fell and was killed.
Respondent allowed Carper's widow a death award. Subsequently she filed an application for an additional award claiming the relator had violated Section 3 of Bulletin 203 of the Code of Specific Safety Requirements and General Safety Standards for Workshops and Factories, and that such violation was the cause of her husband's death.
On March 27, 1950, the commission made its finding that Carper suffered fatal injuries when he fell or was caught in a bucket conveyor system; that there was no means at the bucket conveyor machinery to disengage it from the source of power as required by section 15 of bulletin 203; and that as a result the death of decedent was caused by such violation. The commission granted an additional award of 35 per cent of the maximum weekly wage rate of the decedent.
The petition of the relator recites the circumstances of the death of Carper and the fact of the allowance of the additional award by the commission and then alleges that Section 15 of Bulletin 203, Specific Safety Requirements and General Safety Standards for Workshops and Factories, has no application to the bucket conveyor apparatus of the relator in that "(1) the place of business of employer involved herein is not a workshop or factory, and (2) the respondent, Industrial Commission, under date of November 16, 1932, as amended from time to time, the last amendment being on August 12, 1938, adopted a code covering specific safety requirements covering the construction, maintenance and operation of elevators, dumb-waiters, escalators, man lifts and their hoistways, being bulletin 110 wherein, under the heading of `Scope,' * * * respondent ordered and provided as follows:
"`The requirements of this code shall apply to the construction, inspection, maintenance and operation of elevators, dumb-waiters, escalators, man lifts and their hoistways, except as stated in the following paragraph:
"`This code does not apply to belt, bucket, scoop, roller or similarly inclined or vertical freight conveyors (other than man lifts) * * * nor to elevators used only for handling building materials and mechanics during the building construction. These types of apparatus should be made subject to suitable specifications for each type.'"
The answer of the respondent, after admitting all the formal allegations of relator's petition, specifically denies the allegation of the illegality of the orders of the respondent, abuse of discretion on the part of respondent in making such orders and the allegations of the petition not otherwise admitted, and affirmatively alleges that the court has no jurisdiction of the subject matter of this action.
The parties filed stipulations to the effect that the entire file of the Industrial Commission relating to the Carper claim should be considered as evidence, that bulletins 110 and 203, heretofore issued by the Industrial Commission, should be introduced and considered as evidence, that no other bulletin heretofore issued by the Industrial Commission relates or pertains to bucket conveyors, and that no other code adopted by the Industrial Commission sets forth specifications for bucket conveyors.
Messrs. Ballard, Dresbach Crabbe, for relator.
Mr. Herbert S. Duffy, attorney general, Mr. T. Vincent Martin, Mr. Robert W. Beamer and Mr. Eagleton F. Dunn, for respondent.
Attacking the order of the commission granting an additional award to the claimant, the relator claims that it was not operating a workshop or factory at the time of Carper's death and that as a consequence section 15 of bulletin 203, requiring that means be provided at each machine for disengaging it from the source of power, did not apply to relator; and that the operation of the bucket conveyor in connection with its ready-mix concrete plant was excluded from the general regulation above referred to by the provisions of bulletin 110, as amended in 1938, and particularly that portion of it designated "Scope," providing that the code of regulations does "not apply to belt, bucket, scoop, roller or similarly inclined or vertical freight conveyors * * *."
The respondent found that Carper received his fatal injuries by being caught in "a bucket conveyor" operating in the plant of the relator in a manner constituting a violation of section 15 of bulletin 203. Assuming, but not deciding, that the plant of the relator constituted a workshop or factory within the scope of the regulations in question or a shop or factory within the meaning of those terms in Section 1002, General Code, nevertheless the inescapable conclusion must be that "bucket conveyors," such as operated by the relator, were excluded under bulletin 110 from the operation of bulletin 203, and that there was no specific safety requirement in force upon which a violation could be predicated.
The respondent claims finally that the relator cannot invoke the remedy of mandamus and that the court has no jurisdiction to attack the finding and pay-in order of the commission. The respondent claims that under the rule adopted by this court in Slatmeyer v. Industrial Commission, 115 Ohio St. 654, 155 N.E. 484, the relator has an adequate remedy at law by way of defense when it is sued for recovery of the award made by the commission.
However, this court in State, ex rel. Rae, v. Industrial Commission, 136 Ohio St. 168, 24 N.E.2d 594, allowed a writ of mandamus holding that it is a permissible remedy where, as here, the additional award for the violation of a specific requirement has been made and it is shown that the order of the commission is unlawful and, therefore, an abuse of discretion. See, also, State, ex rel. Emmich, v. Industrial Commission, 148 Ohio St. 658, 76 N.E.2d 710; and State, ex rel. Fruehauf Trailer Co., v. Coffinberry, 154 Ohio St. 241.
A writ of mandamus, as prayed for, is allowed.
Writ allowed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT and MATTHIAS, JJ., concur.
MIDDLETON, J., not participating.