State ex rel. Pozzi v. Industrial Commission
State ex rel. Pozzi v. Industrial Commission
Opinion of the Court
This is an action in mandamus in which the relator asks this court to issue its order requiring the Industrial Commission to pay to the relator, in installments, a total sum of $3,250 to cover an additional award which relator claims the Commission should make in favor of relator as a penalty of 50 per cent, of a former allowance made to relator by reason of the death of the husband of relator, as a result of an accident occurring to him while he was engaged in the course of his employment, and by reason of the further fact that the employer of the deceased husband had violated a specific requirement promulgated by the Industrial Commission, as set forth in Section 71 of the Code for Specific Requirements of the Commission, for the safety of employees. Dates are not material here, and all dates will be omitted.
“Excavations for foundations, pipe trenches and other excavations incidental to building construction shall be protected by substantial bracing, shoring or sheet piling. Such protection to be consistent with the magnitude of the work, and the character of the soil or material in which the excavation is made. Where excavations are made near highways, railroads or other places where exceptional hazards exist due to vibration, additional precaution shall be taken.”
The second defense of the answer sets up the foregoing facts. Relator demurs to this second, defense on the ground that it does not state a defense. The sole question is whether Pozzi was engaged in work covered by and embraced in the terms of Section 71, above quoted. This court is unanimously of the opinion that the language of the section is too plain and definite to need any construction. It is only necessary to read the section, giving to the terms employed their plain and self-evident meaning. Before there can be a violation of a specific requirement, there must exist a specific requirement, and, when a requirement is definite as to the kind and character of work intended to be embraced and covered, the stated limitation of the requirement must be enforced. It is quite unavailing to urge that the specifications should have been made sufficient in scope to cover a case which they do not cover. To concede that the specific requirement might well have been broader in scope will not enlarge the actual scope. It is plain that the foregoing specific requirement in this case did not cover the bracing
The demurrer to the second defense of the answer will be overruled.
Demurrer overruled.
Reference
- Full Case Name
- The State, ex rel. Pozzi v. Industrial Commission of Ohio
- Status
- Published