#### The Mabley & Carew Co. *v.*Lee, a Minor.

(No. 24660

Decided November 27, 1934.)

*71
      *Messrs. LeBlond, Morrissey, Terry & Gilday*and *Mr. Paul McQueen,*for plaintiff in error.

*Mr. Cedric Vogel,*for defendant in error.

By the Court.

The issues here presented involve a comparison and construction of the provisions of Article II, Section 35 of the Constitution of Ohio as they now. stand and as they read before the amendment effective January 1, 1924.

In its earlier and briefer form this section consisted of the following language, the italicized part of which was eliminated by the amendment:

> “For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state determining the terms and conditions upon which payment shall be made therefrom, *and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employe when the injury, disease or death arises from failure of the employer to com*
>       *72
>       *ply with any lawful requirement for the protection of the lives, health and safety of employes.*Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.”

The present language is as follows, with the new wording indicated by italics:

> “For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. *Such compensation shall be in lien 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.*Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto. *Such board shall set aside as a separate fund such proportion of the contributions paid by employers as in its judgment may bd necessary, not to exceed' one per centum thereof in any year, and so as to equalise, insofar as possible, the burden thereof, to be expended by such board in such manner as may be provided by la/w for the investigation and prevention of industriad Occidents and dig-*
>       *73
>       *eases. Such board shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final; and for the purpose of such investigations and inquiries it may appoint referees. When it is found, upon hearing, that an injury, disease or death resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury, disease, or death, and paid in libé manner as other awards; and, if such compensation is paid from the state fimd, the premium of such employer shall be increased in such amount, covering such period of time as may be fixed, as will recoup the state fund in the amount of such additional award, notwithstanding any and all other provisions in this constitution.”*

Counsel also discuss Section 1465-76, General Code, and certain decisions of this court under the earlier provisions of Article II, Section 35. But manifestly these cannot be considered important at this time. This is especially true of Section 1465-76, General Code, inasmuch as it was by implication repealed by the constitutional amendment of January 1, 1924, and was expressly repealed by the Legislature by an act effective July 9, 1931 (114 Ohio Laws, 26, 39). Then, too, it is obvious that no statutory question can be involved whenever there is a controlling provision in the Constitution.

The plaintiff’s contention is that she sustained an actionable “injury” through failure of her employer *74to comply with the requirements of Sections 12993 and 12996, G-eneral Code.

Whether this alleged injury is compensable from the state fund is a question not before this court at this time. The single question decisive of this case is whether the present provisions of Article II, Section 35, permit this sort of action against an employer who is a contributor to the state fund.

Especially when contrasted with the earlier provisions, the following broad language of the amendment should leave no doubt as to its meaning:

> “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.”

Of equal force and unambiguity is the following language of the Legislature (110 Ohio Laws, 632) in its resolution providing for the designation of the proposed amendment on the official ballot:

> “Providing compensation for all accidents and diseases arising out of employment, providing additional compensation for employes where accident or disease results from failure to comply with specific requirements for the protection of lives, health and safety of employes, *abolishing open liability of employers,*and providing a fund for the investigation and prevention of industrial accidents and diseases”.

Then too, it is at least persuasive to observe the expression of the joint committee that assumed the burden of preparing the amendment. Fortunately this group was composed of representatives of both employers and employees who desired to clarify the law and put an end to the costly and futile strife that existed under the old order of things. The language of their statement was as follows:

> *75“What the Amendment Does for the Worker

> “1. It protects and preserves the integrity of the Compensation Law.

> “2. It assures every worker compensation for injuries or death arising out of and in course of employment, backed by state law and state administration without necessity for recourse to law suits or employment of attorneys or payment of court costs.

> “3. It gives the worker an additional award without suits at law where the injury was the fault of the employer due to his failure to comply with specific requirements for the health and safety of the workers.

> “4. It provides a fund to be expended by the Industrial Commission for the study and application of methods to prevent industrial and vocational accidents which will result in saving many lives and prevent the loss of limbs and faculties. ’ ’

> “What the Amendment Does for the Employer

> “1. It protects and preserves the integrity of the Compensation Law.

> “2. It wipes out the ‘open liability’ — giving recourse only to the compensation law for injuries or death arising out of and in course of employment.

> “3. It fixes a limit of financial liability in such cases and protects the assets and credit of the employer.

> “4. It defines ‘lawful requirement’ so as to bring it within the rule of reason, and gives the employer notice of his specific obligations under it.

> “5. It provides a fund for laboratory analysis of accidents and the provision of means for prevention, which should result in saving of life and limb and a substantial reduction in total awards and premiums.

> “6. It abolishes the ‘ambulance-chaser’ in connection with these claims. ’ ’

From all of the foregoing it is readily apparent that the present amendment provides a new and comprehensive definition of the rights and liabilities of employers and employees. Under it certain new rights *76were created and some former ones were abolished. The amendment has become an integral part of the organic law of this state, and consequently neither the Legislature nor this court can narrow or broaden its terms.

Consistent with the f oregoing views the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.

*Judgment reversed.*

Weygandt, C. J., Stephenson, Jones, Matthias, Bevis and Wilkin, JJ., concur.

Zimmerman, J.,

dissenting. I am unable to agree with the conclusions reached by my associates in the majority opinion.

At the beginning it might be well to note that we are dealing with the organic and statutory laws of Ohio as they are, and not as they might or perhaps should be.

Section 35, Article II, of the Constitution of Ohio, as amended in 1923, effective January 1, 1924, has been quoted in full in the majority opinion and I shall not repeat it.

This section as adopted in 1912 and as amended in 1923, differentiates between injuries and occupational disease. It clearly recognizes three distinct classes for which provision may be made: (1) Injuries resulting in death; (2) Non-fatal injuries; and (3) Occupational disease. And all are limited to such as may be occasioned in due course of employment. *Industrial Commission*v. *Brown,*92 Ohio St., 309, 314, 110 N. E., 744, 746, L. R. A. 1916B, 1277, 1279.

By virtue of the constitutional authorization, the General Assembly passed laws establishing a State Insurance Fund and providing for its administration. Laws were also enacted providing compensation to *77the dependents of a workman whose death occurs as a result of injuries suffered in the course of his employment; to the workman himself for non-fatal injuries, and to the workman who contracts one of the occupational diseases enumerated in Section 1465-68a, General Code, or to his dependents in the event of his death from any of such diseases. Of course negligence does not affect the right to compensation.

The clause “Such compensation shall be in lieu of all other rights to compensation,” etc., as used in the constitutional amendment, refers to the compensation to be awarded “to workmen and their dependents, for death, injuries or occupational disease,” etc., through the authorized legislative enactments.

It is undoubtedly true that where “death, injuries or occupational disease” occur within the scope of the Workmen’s Compensation Law making them compensable, the remedies provided by such law are exclusive. Through contribution to the State Insurance Fund, or through other approved arrangements in the case of a self-insurer, the employer pays for protection against direct court actions by his employees, and they are prohibited; but what is to be done with cases of death, injuries or disease suffered by the workman in the course of his employment *through the negligence of his employer,*not within the compensation features of the Workmen’s Compensation Law, and against direct actions for which the employer does not pay for protection through contribution to the State Insurance Fund, or otherwise? It seems to me that question was properly answered by the Supreme Court of Ohio in the case of *Victor Rubber Co.*v. *Robbins, Admx.,*101 Ohio St., 536, 130 N. E., 942. In that case Clara Robbins, as administratrix, brought suit for damages against the Victor Rubber Company, a contributor to the State Insurance Fund, for the death of her decedent, who was an employee of such company. She alleged in her *78petition that her decedent died from typhoid fever contracted through drinking water from wells maintained by the company for the use of its employees, which through its negligence had become contaminated with typhoid fever germs. The company raised the point that as a contributor to the State Insurance Fund it was protected from such action. In overruling a demurrer to the petition, the trial court held, as stated in the syllabus of the case, *Robbins, Admx.,*v. *Victor Rubber Co.,*21 N. P. (N. S.), 17, 29 O. D. (N. P.), 87:

> “A petition asking damages on account of the death of an employee of the defendant from typhoid fever, contracted from the drinking of contaminated water drawn from a well from which defendant’s employees were supplied, is not open to demurrer, for the reason that the defendant is not protected by said act notwithstanding he may have paid into the state insurance fund. ’ ’

The case proceeded to trial, and the administratrix recovered a verdict and judgment, which judgment was affirmed by the Court of Appeals. In affirming the judgment of the Court of Appeals, this court said “that the allegations of the petition concerning the construction, location and maintenance by the defendant of the well referred to, and described in the petition, and the further allegations with reference to the injury caused to the decedent thereby, constituted a liability and a cause of action against the plaintiff in error, which was not removed by the provisions of the Workmen’s Compensation Act.”

The proposition is thus stated in 28 Ruling Case Law, 829, 830, Section 117:

> “Where the right to an award of compensation for injury or death exists by virtue of the provisions of the workmen’s compensation act, the remedy for its enforcement is by many of the statutes made exclusive, and no action at law may be instituted against the *79employer. But if for any reason the statute is inapplicable to the case, the employee may have recourse to his common law remedy.”

This text is supported by a number of authorities. Particular attention is directed to the following cases: *Jones, Admx.,*v. *Rinehart & Dennis Co.,*113 W. Va., 414, 168 S. E., 482; *Jellico Coal Co.*v. *Adkins,*197 Ky., 684, 247 S. W., 972; *Donnelly*v. *Minneapolis Mfg. Co.,*161 Minn., 240, 201 N. W., 305; *Echord*v. *Rush, Recr.,*124 Kan., 521, 261 P., 820; *Smith, Admx.,*v. *International High Speed Steel Co.,*98 N. J. Law, 574, 120 A., 188.

In the case before us, defendant in error charges in her petition that as a direct and proximate result of the violation of Section 12996, General Code, by her employer, she “became physically exhausted and suffered a nervous breakdown, became subject to violent nervous attacks with visible outward manifestations thereof”.

It is my opinion that this allegation describes a physical injury in and of itself, not analogous to fright, anguish, shock or mental suffering, as contended by counsel for plaintiff in error, for which there can be no recovery in the absence of contemporaneous physical injury, under the holdings in many of the cases. 13 Ohio Jurisprudence, 164 *et seq.;*8 Ruling Case Law, 525 *et seq.;*17 Corpus Juris, 828 *et seq.*Lending -support to the view that an injury to the nervous system is a physical injury are the following authorities: 17 Corpus Juris, 832, Section 152; *Sloane*v. *Southern Cal. Ry. Co.,*111 .Cal., 668, 44 P., 320, 32 L. R. A., 193; *Watson*v. *Dilts,*116 Iowa, 249, 89 N. W., 1068, 93 Am. St. Rep., 239, 57 L. R. A., 559; *Hill*v. *Kimball,*76 Tex., 210, 13 S. W., 59, 7 L. R. A., 618; *Wilkinson*v. *Downton, 2*Q. B. (1897), 57; *Janvier*v. *Sweeney, 2*K. B. (1919), 316, 9 British Rul. Cases, 579; *Kear*v. *Garrison,*13 C. C., 447, 7 C. D., 515 (Affirmed 58 Ohio St., 707, 51 *N.*E., 1098).

*80An actionable physical injury need not be of traumatic origin. *Johnson*v. *Sampson,*167 Minn., 203, 208 N. W., 814, 46 A. L. R., 772; *Gay*v. *Hocking Coal Co.,*184 Iowa, 949, 957, 169 N. W., 360, 363. And compare, *In re Burns,*218 Mass., 8, 12, 105 N. E., 601, 603, Ann. Cas., 1916A, 787, 789; *In re Hurle,*217 Mass., 223, 224, 104 N. E., 336, 337, L. R. A., 1916A, 279, 280, Ann. Cas., 19150, 919, 920.

Defendant in error has not alleged an injury compensable under the Workmen’s Compensation Law of Ohio. Through a long line of decisions this court has consistently limited the meaning of the term “injury”, as used in the Constitution and the statutes, to physical or traumatic injuries *accidental in their origin and cause;*the result of a “sudden happening” at a particular time. *Industrial Commission*v. *Cross,*104 Ohio St., 561, 136 N. E., 283; *Renkel*v. *Industrial Commission,*109 Ohio St., 152, 141 N. E., 834; *Industrial Commission*v. *Russell,*111 Ohio St., 692, 146 N. E., 305; *Industrial Commission*v. *Franken,*126 Ohio St., 299, 185 N. E., 199; *Industrial Commission*v. *Middleton,*126 Ohio St., 212, 184 N. E., 835; *Industrial Commission*v. *Lambert,*126 Ohio St., 501, 186 N. E., 89.

Through no stretch of the imagination could the condition described by defendant in error be classed as an occupational disease within the accepted definition of that term. *Industrial Commission*v. *Roth,*98 Ohio St., 34, 38, 120 N. E., 172, 173, 6 A. L. R., 1463, 1465; *Victory Sparkler & Specialty Co.*v. *Francks,*147 Md., 368, 379, 128 A., 635, 638, 44 A. L. R., 363, 368; *Barron*v. *Texas Employers’ Ins. Assn.*(Texas Comm. App.), 36 S. W. (2d), 464, 466; Schneider on Workmen’s Compensation Law, 1, 419, Sec. 223.

We are confronted in the instant case with a situation not covered by the Workmen’s Compensation Law. The defendant in error has charged an injury— *a*harm to health — directly due to the wrongful con*81duct of her employer in violating a statute passed for the protection of the class to which she belongs, which violation, if established, constitutes negligence *per se. Variety Iron & Steel Works Co.*v. *Poak,*89 Ohio St., 297, 106 N. E., 24; *Hadfield-Penfield Steel Co.*v. *Sheller,*108 Ohio St., 106, 141 N. E., 89; 18 Ruling Case Law, 552, Section 64; 39 Corpus Juris, 297, 298, Sections 424, 425.

It is my opinion that the petition herein states a valid and sufficient cause of action, which can be maintained. Otherwise, there exists here an alleged wrong for which there is no remedy. This is contrary to the established policy of. the law. As stated in *Engle*v. *Simmons,*148 Ala., 92, 41 So., 1023, 121 Am. St. Rep., 59:

> “It is a sound and just principle of law that, where one in violation of the law does an act which in its consequences is injurious to another, he is liable for the damages caused by such wrongful act.”

I agree with the conclusion reached by the Court of Appeals in this case that the demurrer to the petition should be overruled.

The case of *Zajachuck*v. *Willard Storage Battery Co.,*106 Ohio St., 538, 140 N. E., 405, is opposed to the position I have taken, but I agree with neither the reasoning nor result of that case.