Mercer v. Uniroyal, Inc.

Wiley, J.,

concurring in the ruling on the first assignment of error but dissenting as to the disposition by the majority of the court of the second assignment of error.

Robert Mercer (plaintiff), as an employee of Uniroyal, Inc., applied for and received workmen’s compensation in the form of weekly benefits and a payment of medical bills for injuries arising out of his employment. He is estopped from maintaining an additional action for damages for the same injuries on any other theory.

Indus. Comm.

v.

Brosky

(1934), 128 Ohio St. 372 ;

Conrad

v.

Youghiogheny & Ohio

*287

Coal Co.

(1923), 107 Ohio St. 387 ;

Lopes

v.

King Bridge Co.

(1923), 108 Ohio St. 1 .

Even had plaintiff failed to apply for and receive workmen’s compensation benefits, it is undisputed that he was entitled to such benefits for injuries received while in the course of his employment. This factual situation is significantly different from that in the cases cited in the majority opinion:

Panagos

v.

North Detroit General Hospital

(1971), 35 Mich. App. 554 , 192 N. W. 2d 542 , 50 A. L. R. 3d 501;

Tipple

v.

The High Street Hotel Co.

(1941), 70 Ohio App. 397 ;

Coston

v.

Carnegie-Illinois Steel Corp.

(1952), 69 Ohio Law Abs. 375 . In these eases, the employee applied-for and was denied workmen’s compensation for the reason that the injuries were not received in the course of his employment. These cases, in fact, do not support the dual-capacity doctrine.

The logical thrust of the dual-capacity doctrine is that an employee may recover workmen’s compensation benefits as an employee and may recover additional compensation in some other capacity; at least, the dual-capacity theory offers him a choice. 2A Larson, Workmen’s Compensation Law, Section 72.80;

Duprey

v.

Shane

(1952), 241 P. 2d 78 , aff’d 249 P. 2d 8 ;

Costanza

v.

Mackler

(1962), 34 Misc. 2d 188 , 227

N.

Y. S. 2d 750.

The dual-capacity doctrine is

contra

to the law of Ohio. The second sentence of Section 35, Article II of the Ohio Constitution reads as follows:

“Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”

E, C.4123.74 states:

“Employers who comply with section 4123135 of the Eevised Code'shall not be liable to respond in damages at common law dr by statute for any injury, or occupational', disease, or bodily condition, received or contracted by any

*288

employee in the course of or arising out of his employment,, or for any death resulting from such injury, occupational disease, op bodily. condition . occurring during the. period covered by - such premium • so paid into the state insurance fund,, or, during the interval of time in which such employee is permitted to pay such compensation directly to his injured; .employees. or the dependents of Ms killed employees,-.whether or not such injury, occupational disease,, bodily .condition,- or death is; compensable under sections 4183;01-,to; 4123.94, inclusive, of the Revised Code.” ,.

•-R.-C; 4123.74 has. been applied liberally in granting immunity, to complying employers. As stated in the first paragraph of the syllabus, of

Bevis

v

. Armco Steel Corp.

(1949), 86 Ohio App. 525 ,

appeal dis.

153 Ohio St. 366 ,

cert. den.

340 U. S. 810 ,

reh. den.

340 U. S. 885 :

“Under Section 35, Article II of the Constitution of Ohio,.and Section 1465-70, General Code, the. open liability of,employers is abolished, -and in every case where, the, ipjury, disease, or bodily condition occurred in or arose out of, .the .employment,

no matter how incurred,

except self-inflicted, the Workmen’s Compensation Act is the exclu-, sive remedy, and such condition is either compensable under that'law :pr not at. all, and no action of any kind may; be brought against a complying employer therefor;’’; (Emphasis;added,-). -.

G. C. 146.5-70,.in the above quote;is now: codified as R. C. 4123.74. Compare

Greenwalt

v.

The Goodyear Tire & Rubber Co. (1955),

164 Ohio St. 1 , 7, wherein, the Supreme Court of Ohio, cited:.and explained the. decision in Bevis,

supra,

:and reaffirmed the immunity of a complying employer..I,t said, in thelsyfiabus.: ■ ...

, ‘11. An employer-;who complies with, the "Workmen’s Compensation Act shall not be liable to. respond in damages at common law or by statute for any. injury, disease or death of an employee occurring during the. period of such compliance.” • ............

'See, also,

State, ex rel. Allied ¡Chemical Corp. v.,.Ear-. hart

(1974),, 37-Ohio, St. 2d.153, 155-156;

State,.ex r.el.,En~ gle, v,'.Indus: Oomm,

(1944), 142 Ohio Stí. 425;.

Sebeh

v.

*289

The'Cleveland Graphite Bronze Co.

(1947), 148 Ohio St. 693 ;

Roof

v.,

Velsicol' Chemical Corp.

(N. Í). OMo, 1974), 380 F. Supp. 1373 .

'■ “Under the-common-law; system by far. the greater proportion of industrial accidents remained uncompensated, ' and the bufden fell upon the workman, who was'least able to support it.”

4

After many years of agitation because of tMs inequitable and inhumane situation, statutory relief was'¿ranted: by way of- workmen’s compensation laws; the first state statute being enacted in New York' in 1910. OMó followed in Í911, and by 1921 all but a few of the American'' states had enacted such legislation. At the present time, they are in effect in all of the states. “The theory underlying the workmen’s compensation acts never' has been stated better than in the old campaign slogan, 'the cost of the product should bear the blood of the vtorkman’. * Workmen’s compensation is thus a form df strict liability. The employer is charged with the injuries arising out of hi's business, without regard to any question of his negligence,, or ;that of the injured employee.”

5

The majority laments the growth of conglomerates as a .factor in' erasing causes of action. I counter by saying that no .causes of action have been erased; the injuries of all employees arising out of the course of employment afe compensated uiuder workmen’s compensation acts] and the

*290

conglomerate employer is granted only the same immunity from, common-law actions of any kind as any other complying employer receives.

The majority opinion refers to a statement made by Larson to the effect that the question is whether there should be the obliteration of valuable and long-standing causes of action where the statutory language destroying that cause of action is unclear, and any doubt should be resolved in favor of preserving rather than abolishing the right.. See, 2A Larson,

supra.

This quotation more appropriately .supports the long-standing and valuable statutory protection afforded to complying employers under workmen's compensation laws against a cause of action, rather recently recognized, based on the product liability doctrine.

Lonzrick

v.

Republic Steel Corp.

(1966), 6 Ohio St. 2d 227 . Any doubt, then, should be resolved in favor of preserving, rather than abolishing the statutory right of immunity’

As to the dual-capacity doctrine, this case is one of first impression, to our knowledge, in the state of Ohio. I respectfully submit that the immunity established under the Constitution of Ohio and implemented by the statutes pertaining, to Workmen's compensation, and as interpreted by the .courts of Ohio, have created such an established doctrine of law that any change so fundamental as eliminating the immunity of the employer who complies with the statutory requirements should be brought about only by legislative action and probably only by a constitutional ainendmqnt.

I would find that the trial court did not err in sustaining Uniroyal’s alternative motion for summary judgment.

4

Prosser, Law of Torts (4th ed., 1971), Section .80, . ;

5

Id.

Also, see 1 Schneider, Workmen’s Compensation (2d ed. .1932)., page 6.

The theory of .workmen’s compensation in Ohio was expressed in

State, ex rél. Munding,

v.

Indus. Comm.

(1915), 92 Ohio St.' 434, 450, wherein the court'Said: ' .....

“And the theory upon which the compensation law is based (which is now generally accepted) is that each time an employe is killed or injured there is an economic loss which must be made up or compensated in some way, that most accidents are attributable to the inherent risk of employment — that is, no one is directly at fault — that the burden of this economic loss should be borne by the industry rather than by society as a whole, that a fund should be provided by the industry from which a fixed sum should be set. apart as every accident occurs to compensate the person injured, or his dependents, for his or their loss.”