STATE EX REL. v. INDUS. COMM., 172 Ohio St. 115 (1961)

173 N.E.2d 890

THE STATE EX REL., HILL v. INDUSTRIAL COMMISSION OF OHIO.

No. 36661Supreme Court of Ohio.
Decided April 5, 1961.

Workmen’s compensation — Additional award for violation of specific requirement — Operation of crane or hoisting apparatus near electric wires — Ample clearance — Requirement not specific, when.

IN MANDAMUS.

At the time of his death, one C.W. Hill was engaged as a workman in laying a storm sewer. When sections of the large concrete sewer pipe were lowered into the ditch by a power crane equipped with a boom and cable line, decedent would assist in fitting the sections of pipe in place and cementing them together. While decedent was removing the hook which held a section of pipe which had been lowered into the ditch, either the cable or crane came in contact with an overhead power line, resulting in his death by electrocution.

Decedent’s employer was a contributor to the State Insurance Fund, and the Industrial Commission granted a lumpsum death award to his widow, relatrix herein, and her minor son.

Thereafter, relatrix filed an application for an additional award, based on the claim of a violation of a specific safety regulation, i.e., Section 161 of Bulletin 202, relating to building and construction work. The application was denied by the respondent on the ground that, although decedent’s fatal injuries were caused by the employer’s violation of Section 161 of Bulletin 202, such section is not a specific safety requirement within the meaning of Section 35, Article II of the Constitution.

Relatrix then instituted this mandamus action in this court seeking a writ requiring respondent to vacate its order denying the additional award and to allow relatrix and her son the additional award on the basis that Section 161 of Bulletin 202 constitutes a specific safety requirement.

Respondent, in its answer, admits that decedent was electrocuted while engaged in work for his employer, and that relatrix was awarded death benefits, but denies that Section 161 of Bulletin 202 is a specific safety requirement, and that relatrix

Page 116

has stated a cause of action in mandamus. Respondent prays that the amended petition be dismissed.

The case has been submitted on the amended petition, the answer and a stipulation of facts.

Messrs. Pretzman, Greenlee Snowden, for relator.

Mr. Mark McElroy, attorney general, and Mr. William G. Carpenter, for respondent.

Per Curiam.

The question presented is whether Section 161 of Bulletin 202, issued by the Industrial Commission, is a specific safety requirement within the meaning of Section 35 of Article II of the Constitution.

That section of the bulletin reads as follows:

“Section 161. When it is necessary to move or operate a shovel or crane or any other type of hoisting apparatus or construction equipment under or close to electric wires, ample clearance shall be provided, together with such precautions as may be necessary to prevent contact between any part of the equipment and the wires.

“Recommendation: Ten (10) foot clearance should be maintained on all electric lines carrying 100 volts or higher voltage. If the voltage is unknown or this working distance cannot be maintained, the utility company serving the area should be contacted.”

The section is not specific. It provides that “ample clearance shall be provided” with a recommendation that a ten-foot clearance should be maintained. It does not specifically provide that a ten-foot clearance is ample or that there shall be a ten-foot clearance. The section provides further, “together with such precautions as may be necessary,” without naming or suggesting what those precautions are or may be.

The “recommendation” provides that, if the voltage is unknown or the working distance cannot be maintained, the utility should
be contacted, but does not provide what, if anything, the utility (power company) must or should do when contacted. A recommendation is not a specific requirement.

Section 161 is not such a specific safety requirement as affirmatively directs the employer or establishes a standard which he must follow.

Page 117

The relatrix has not stated a cause of action in mandamus. Therefore, the amended petition is dismissed and a writ denied.

Writ denied.

WEYGANDT, C.J., ZIMMERMAN, MATTHIAS and BELL, JJ., concur.

HERBERT, J., dissents.

BELL, J., concurring.

Concededly, as pointed out in the dissenting opinion, it may at first appear incongruous to find, as the Industrial Commission did, that the decedent’s fatal injuries were caused by a violation of Section 161 of Bulletin 202, but that such section was not a specific safety requirement entitling relator to the additional compensation.

Obviously, if the boom of the crane near which the decedent was working came in contact with a live wire, there was not “ample” clearance between the boom and the wire and there was a consequent violation of the “ample” provision.

But the fact of such violation does not answer the question of whether the requirement is a “specific requirement” within the meaning of the Constitution. In my opinion, words such as “ample,” “such precautions as may be necessary,” “should,” and “recommendation” are not consistent with the usual meaning of “specific” as “precisely formulated * * * definite * * * of an exact or particular nature.” Webster’s New International Dictionary (2 Ed.).

HERBERT, J., dissenting.

My dissent from the judgment in this case is based, not on the question of whether Section 161 of Bulletin 202 is a specific safety requirement within the meaning of Section 35 of Article II of the Constitution, but solely on the proposition that here the respondent, Industrial Commission, specifically found that the decedent’s fatal injuries were caused by violation of Section 161. Had the Industrial Commission stated that it could not find that the decedent’s fatal injuries were caused by the employer’s violation for the reason that it believed Section 161 not to be a specific safety requirement, I would fully concur with the judgment here, as it is apparent to

Page 118

me that the section is difficult of interpretation. I fully agree that the “recommendation” paragraph cannot be construed as a specific requirement and, in my opinion, should not be considered to be a part of Section 161, but merely supplementary thereto. However, I would allow the writ here solely because the Industrial Commission itself was able to interpret this section sufficiently to enable it to find that the employer violated it. In my opinion, that finding of fact precluded the commission from raising the question here which the majority of the court are determining.