Brecount v. Procter & Gamble Co.

166 Ohio St. (N.S.) 477
CourtOhio Supreme Court
DecidedJuly 3, 1957
DocketNo. 35056
StatusPublished

This text of 166 Ohio St. (N.S.) 477 (Brecount v. Procter & Gamble Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brecount v. Procter & Gamble Co., 166 Ohio St. (N.S.) 477 (Ohio 1957).

Opinions

HeRbeet, J.

We consider first the issue on which the Court of Appeals certified this cause.

The defendant has maintained throughout that the trial court should have charged the jury that, “unless they find that plaintiff’s loss of vision is at least 25 per cent, the jury will find for the defendant,” and contends that failure to do so constitutes reversible error.

As applicable to this case, Section 1465-80, General Code (Section 4123.57, Eevised Code), provides in part:

“Partial disability compensation shall be paid as follows:
[480]*480i 6 * # *
“ (b) In all cases included in the schedule in paragraph (c) hereof, and in all cases in which the employee has elected or is deemed to have elected that compensation on account of partial disability shall be awarded under the provisions of paragraph (b) hereof, and in all cases where the Industrial Commission has determined that the percentage of physical disability is less than 25 per cent, the injury shall be deemed to have resulted in permanent partial disability. * * *
“(c) In cases included in the following schedule the compensation payable to the employee shall be 66 2/3 per cent of the average weekly wage, not to exceed a maximum of 32 dollars and 20 cents per week and not to be less than a minimum of 14 dollars per week, and shall continue during the periods provided in the following schedule, to wit:
( i # * tt
“For the permanent partial loss of sight of an eye, 66 2/3 per cent of the average weekly wages for such portion of 125 weeks as the commission may, in each case determine, based upon the percentage of vision actually lost as a result of the casualty, but in no case shall an award of compensation be made for less than 25 per cent loss of vision. In no case shall the payments of compensation for partial loss of sight or total loss of sight or facial or head disfigurement due to loss of the eye, whether caused by one or more accidents total more than 125 weeks.” (Emphasis added.)

In conjunction with the above section, also to be considered is Section 1465-89, General Code (Section 4123.66, Revised Code), which provides:

“In addition to the compensation provided for herein, the Industrial Commission of Ohio shall disburse and pay from the State Insurance Fund, such amounts for medical, nurse and hospital services and medicine as it may deem proper * *

Section 1465-90, General Code (Section 4123.51, Revised Code), so far as pertinent, provides:

“The commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions thereon shall be final, except as provided in this section. The commission shall definitely and specifically pass upon [481]*481each and every issue raised in the claim, necessary for a proper and complete decision thereon. In all claims for compensation on account of injury, or death resulting therefrom, if the commission denies the right of the claimant to receive compensation or to continue to receive compensation the order of the commission shall state the ground or grounds on which the claim was denied; and if the claim was denied on any of the following grounds: * * * that the claimant’s disability is not the result of the injury * * * then the claimant may within 30 days after the receipt of notice of such finding of the commission, file an application with the commission for a rehearing of his claim * * *.
“If the commission, after such hearing, denies the right of the claimant to receive or to continue to receive compensation it shall state the ground or grounds on which the claim was denied and if the claim was denied on any of the grounds here-inabove specifically stated then the claimant, within 60 days after receipt of notice of such action of the commission, may file a petition in the Common Pleas Court of the county wherein the injury was inflicted * * V’

From the facts recited in the statement preceding this opinion, it is clearly apparent that the Industrial Commission disallowed the claim on the ground that plaintiff’s disability was not the result of the injury and for no other reason. The transcript of the record made upon rehearing discloses no medical testimony relating to the percentage of plaintiff’s disability.

In the WMtlatch case, supra (see, also, Industrial Commission v. Whitlatch, 21 Ohio Law Abs., 34, same case on rehearing —motion to certify record overruled January 29, 1936), the Court of Appeals for Franklin County held that “before a claimant is entitled to an allowance of compensation for a permanent partial loss of vision he must establish that he has suffered at least a 25 per cent loss, and until such a percentage of loss is shown he is not entitled to recover,” citing State, ex rel. Schindler, v. Industrial Commission (1932), 126 Ohio St., 34, 183 N. E., 871. The court stated further that “it is our view that until such a percentage of loss was sustained and shown, the claimant would not be entitled to share or participate in the compensation fund for a permanent partial injury.”

[482]*482It appears in the opinion in that ease after rehearing (cited above) that the order of the Industrial Commission, from which appeal was taken, was that “ ‘it has no jurisdiction of the claim and no authority thereby to inquire into the extent of disability or amount of compensation claim.’ ” It is not clear whether the commission disclaimed jurisdiction solely because of the failure to establish a 25 per cent loss of vision or for some other reason. However, that case furnished the authority for the Court of Appeals for Lorain County to render its judgment in the Bacetti case, supra. In that case, the trial court gave a special request before argument and charged the jury in substance that the plaintiff must prove by a preponderance of the evidence that his loss of vision was at least 25 per cent. That ■court followed the ruling of the Whitlatch case. We can find no other cases, however, which support that view.

In the case of State, ex rel. Kauffman, v. Industrial Commission (1929), 121 Ohio St., 472, 169 N. E., 572, the relator asserted that he had previously filed a claim for compensation for injuries suffered in the course of his employment, which claim had been allowed and compensation paid thereunder until a certain time. Upon the denial of further compensation, an appeal was taken to the Court of Common Pleas, and the jury returned a verdict finding plaintiff entitled to participate in the fund. The judgment of the court having been certified to the Industrial Commission, further compensation was paid for a time, when it was again denied upon a finding that the proof was not sufficient to show that the relator was suffering disability as a result of the injury. Following that order, the relator filed his petition in mandamus in this court. Paragraphs one and two of the syllabus in that case read:

“1.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Industrial Comm. v. Pomeroy
168 N.E. 572 (Ohio Court of Appeals, 1929)
Hoppe v. Industrial Commission
30 N.E.2d 703 (Ohio Supreme Court, 1940)
Stevens v. Industrial Commission
61 N.E.2d 198 (Ohio Supreme Court, 1945)
Noggle v. Industrial Commission
196 N.E. 377 (Ohio Supreme Court, 1935)
Fisher Body Co. v. Cheflo
171 N.E. 31 (Ohio Supreme Court, 1930)
Pettibone v. McKinnon
183 N.E. 786 (Ohio Supreme Court, 1932)
State, Ex Rel. v. Indus. Comm.
185 N.E. 807 (Ohio Supreme Court, 1933)
State, Ex Rel. v. Indus. Comm.
191 N.E. 691 (Ohio Supreme Court, 1934)
Couk v. Ocean Accident & Guarantee Corp.
33 N.E.2d 9 (Ohio Supreme Court, 1941)
State, Ex Rel. v. Indus. Comm.
186 N.E. 872 (Ohio Supreme Court, 1933)
State, Ex Rel. v. Indus. Comm.
15 N.E.2d 528 (Ohio Supreme Court, 1938)
State, Ex Rel. v. Indus. Comm.
169 N.E. 572 (Ohio Supreme Court, 1929)
State, Ex Rel. v. Indus. Comm.
183 N.E. 871 (Ohio Supreme Court, 1932)
Gerich v. Republic Steel Corp.
92 N.E.2d 393 (Ohio Supreme Court, 1950)
Perkins v. Industrial Commission
140 N.E. 134 (Ohio Supreme Court, 1922)
State ex rel. Araca v. Industrial Commission
181 N.E. 870 (Ohio Court of Appeals, 1932)
Industrial Comm v. Whitlatch
21 Ohio Law. Abs. 34 (Ohio Court of Appeals, 1935)

Cite This Page — Counsel Stack

Bluebook (online)
166 Ohio St. (N.S.) 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brecount-v-procter-gamble-co-ohio-1957.