Opinion
No. 27547
Decided May 24, 1939.
Workmen's compensation — Payments discontinued and mandamus instituted to show cause — Petition demurrable where order of Industrial Commission not pleaded.
IN MANDAMUS.
Otho Hoschar filed an application for workmen's compensation for injuries received while employed by the National Drawn Steel Company of East Liverpool. By reason of his injuries he was confined in a state hospital and the relatrix was appointed guardian of his person and property. After compensation was denied, appeals were perfected, in the name of both Hoschar and his guardian, to the Court of Common Pleas of Columbiana county, where the proceedings were consolidated and a trial to a jury resulted in a verdict and judgment finding a right to participate in the Workmen's Compensation Fund. The Industrial Commission made payments of $64 per month from the rendition of the judgment until October 17, 1938, when, as alleged, the commission "without any cause therefor whatsoever, failed, refused and neglected to allow relators, to participate in the Workman's Compensation Fund * * * as provided by the judgment of the Common Pleas Court * * * although relators have on many occasions demanded * * * that it pay them * * *."
The foregoing facts are pleaded in the petition filed in this court, praying that a peremptory writ of mandamus be awarded to require the respondent "to show cause if any it has, why relators [the guardian and the ward] should not be allowed to participate * * * and why the defendant has failed and refused to pay relators the money so awarded to them by the Common Pleas Court. * * *." The respondent by demurrer challenged the jurisdiction of this court and the sufficiency of the petition in stating a cause of action.
Mr. G. Jay Clark and Mr. Charles Boyd, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
The writ of mandamus will issue to compel the exercise of discretion, but not to control it. 25 Ohio Jurisprudence, 1003, Section 28; Sutphin v. State, ex rel. Jeby, 130 Ohio St. 183, 198 N.E. 483.
The petition pleads that the respondent made payments and then failed and refused to pay, but that pleading does not set forth in full or in substance the order of the commission discontinuing payments. If the order is based upon the ground that the injured employee has been fully compensated, the determination of the commission is final and mandamus will not lie in the absence of abuse of discretion. State, ex rel. Stahl, v. Industrial Commission, ante, 168; State, ex rel. Depalo, v. Industrial Commission, 128 Ohio St. 410, 191 N.E. 691.
If the commission discontinued compensation on a jurisdictional ground, an application for rehearing could be filed under Section 1465-90, General Code, and an appeal taken after adherence to its former order by the commission; in which event, mandamus would not lie as there is an adequate remedy at law.
The demurrer will be sustained and leave will be granted to amend the petition.
Demurrer sustained.
WEYGANDT, C.J., DAY, ZIMMERMAN, MYERS, MATTHIAS and HART, JJ., concur.