Opinion
No. 33651
Decided April 21, 1954.
Mandamus — Not proper or available remedy, when — Not available to review workmen's compensation award — Remedy of self-insurer — Section 1465-74, General Code.
IN MANDAMUS.
Relator, Wheeling Steel Corporation, a self-insurer under the Workmen's Compensation Act, instituted the present mandamus action in this court, asking for a writ requiring the Industrial Commission to revoke, set aside and hold for naught its order granting an award for the death of an employee of relator.
The commission found that the applicant for adjustment of claim was the widow of the deceased employee, was his sole dependent, and was wholly dependent upon him.
It is the contention of relator that the allowance of the death claim was an abuse of discretion in that the applicant was not the widow of decedent and the evidence adduced by the applicant did not establish facts showing that a common-law marriage had ever existed between applicant and decedent.
The respondents in their answer allege that there were sufficient facts in the record before them to establish a common-law marriage between applicant and decedent and deny that they, as the Industrial Commission, abused their discretion in granting the award.
Messrs. Kinder, Kinder Kinder, for relator.
Mr. C. William O'Neill, attorney general, and Mr. Paul Tague, Jr., for respondents.
Mandamus is an extraordinary legal remedy which may not be resorted to by a self-insuring employer against whom a workmen's compensation death award has been made to have judicially determined the issue whether the claimant is a dependent of a deceased employee and entitled to such award. State, ex rel. General Tire Rubber Co., v. Morse et al., Industrial Commission, 160 Ohio St. 559, 117 N.E.2d 329.
A writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.