Opinion
No. 78-1280
Decided July 18, 1979.
Prohibition — Remedy not available, when — Trial court to determine own jurisdiction — Wrongful death action.
APPEAL from the Court of Appeals for Cuyahoga County.
This matter arose out of the death on November 2, 1975, of Charles E. Arthur (decedent), an employee of B.F. Goodrich Co. (Goodrich). On October 20, 1976, the Bureau of Workers' Compensation issued an award of death benefits to Helen V. Arthur (Arthur), decedent's widow and the administratrix of his estate. Pursuant to that award, Arthur had received and accepted death benefits from Goodrich amounting to $18,415.57 for the period up to and including June 4, 1978, and Goodrich continued thereafter to make payments to her periodically as required by the award.
On November 2, 1977, Arthur filed a wrongful death action against Goodrich and others in the Court of Common Pleas of Cuyahoga County, which was assigned to respondent judge. Arthur's complaint alleged, inter alia, that decedent was employed by Goodrich, among others, and that in the course of his required work he was exposed to certain chemical substances which directly and proximately caused the condition which resulted in his death.
On December 9, 1977, defendants Goodrich and its chemical division moved for summary judgment in the trial court on the ground that Arthur's action as against them was barred by Section 35, Article II of the Ohio Constitution, and by R.C. 4123.74. Respondent did not rule on that motion and, on March 28, 1978, issued an order authorizing Arthur to propound interrogatories to defendant Goodrich.
On June 9, 1978, Goodrich filed a complaint for a writ of prohibition in the Court of Appeals, seeking to prohibit respondent from entertaining jurisdiction of Arthur's action against Goodrich. Respondent filed his answer, admitting all the factual averments therein. On July 12, 1978, Arthur filed a motion to intervene and a motion for dismissal of Goodrich's complaint. Thereafter Goodrich filed a motion for summary judgment. On August 10, 1978, the Court of Appeals issued orders granting Arthur's motions to intervene and to dismiss, and ruling Goodrich's motion for summary judgment moot.
The cause is now before this court upon an appeal as of right.
Messrs. Jones, Day, Reavis Pogue, Mr. Victor E. DeMarco and Mr. Irving Berger, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Jeffrey I. Sherwin, for appellee.
The case most nearly apposite to the instant cause, and relied upon by appellant, is State, ex rel. Allied Chemical Corp., v. Earhart (1974), 37 Ohio St.2d 153, in which this court reiterated the three criteria necessary for issuance of a writ of prohibition as stated in State, ex rel. Northern Ohio Tel. Co., v. Winter (1970), 23 Ohio St.2d 6, 8. Allied Chemical involved, among other matters, a wrongful death action against a complying employer, in which the trial court had overruled Allied Chemical's motion to dismiss for failure to state a claim upon which re-relief could be granted. This court found that the lower court was in error in entertaining the suit and, also stated, at page 156:
"* * * Northern Ohio Telephone Co. requires that `refusal of the writ will result in injury for which there is no adequate remedy.' Although we have generally held that prohibition may not be used as a substitute for appeal, a recognized exception to this rule is found in State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St.2d 326, 329, 285 N.E.2d 22, as follows:
"`If an inferior court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by an inferior court.'"
This cause however, is distinguishable from Allied Chemical, supra, in that the respondent judge herein has stated that he is permitting discovery in order that he might determine if he has jurisdiction. This court will not assume that the trial court will make an incorrect decision concerning this threshold question.
Accordingly, the judgment of the Court of Appeals dismissing the complaint in prohibition is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, SWEENEY and LOCHER, JJ., concur.
P. BROWN and HOLMES, JJ., dissent.
I must dissent in that it is my belief that the trial court has no jurisdiction to hear this wrongful death claim. The jurisdiction of this claim is wholly within the Industrial Commission, and any other proceeding is barred by Section 35 of Article II of the Ohio Constitution.
Judicial economy would dictate that this cause be dismissed. Therefore, I would reverse the judgment of the Court of Appeals.
P. BROWN, J., concurs in the foregoing dissenting opinion.