Opinion
No. 26947
Decided June 1, 1938.
Workmen's compensation — Award to injured employee for occupational disease — Death benefits to employee's widow and application for reconsideration denied — Appeal to Common Pleas Court by widow — Petition for writ of prohibition filed in Supreme Court — Writ not issued to prevent anticipated erroneous judgment — Writ not substitute for proceeding on appeal.
IN PROHIBITION.
This case is before this court on a petition for a writ of prohibition, answer and reply, together with the record of proceedings before the Industrial Commission, which record was submitted to this court by agreement of counsel in open court.
Sam Freese, an employee of a contributor to the State Insurance Fund, filed an application with the Industrial Commission of Ohio for the payment of an award for an occupational disease and was compensated for disability resulting from an industrial poisoning from wood alcohol fumes and ink, from December 8, 1930, to January 5, 1931, after which latter date he returned to work.
Sam Freese died on September 5, 1931, and his widow filed her application with the Industrial Commission for death benefits resulting, as she claimed, from his former disability. The Industrial Commission disallowed her claim for the reason "that the proof of record does not establish that the decedent's death was due to an occupational disease contracted in the course of employment while in the service of the employer."
The widow then filed an application for rehearing, which the Industrial Commission considered "as an application for reconsideration, because rehearing does not lie on this claim," under Section 1465-68 b, General Code, and the commission dismissed the application for reconsideration, after an oral hearing was held.
The widow filed an appeal in the Court of Common Pleas of Williams county, her petition alleging that she came into that court upon an appeal from the "final action of the defendant in Claim No. O. D. 7789, on the records of said commission," and that the death of her husband was by reason of the accidental inhaling and absorbing vapors and fumes arising from boiling printer's ink and accidentally getting such ink on his hands and arms as he was mixing ink and experimenting with it on printing presses, by reason of which poison and injuries so received he died.
The Industrial Commission in its answer in the Common Pleas Court admitted that the widow filed an application for compensation on account of the death of her husband from an occupational disease, that her claim was denied, that an application for rehearing was filed, that there never had been a rehearing as provided by Sections 1465-90, General Code, and that since no evidence was taken on rehearing as provided by that section, the commission had no transcript to file with its answer.
The widow filed a motion asking the Court of Common Pleas to require the Industrial Commission to certify to that court the transcript of the record of such proceedings as were had before the Industrial Commission, which motion was sustained by the court. Subsequently the widow filed a motion asking that a citation be issued to show cause why the commission should not be punished for contempt of court for failure to comply with the order to certify the transcript of the proceedings. A motion was made in open court by the Industrial Commission to dismiss the contempt proceedings and to dismiss the case, for the reason that the Court of Common Pleas was without jurisdiction to hear the case. The court overruled the motion to dismiss the contempt proceedings and ordered that the case be assigned for trial and that the Industrial Commission produce at the trial a transcript of all the evidence offered at all hearings before the commission and all original papers filed with and orders entered by the commission.
Thereupon the Industrial Commission filed in the Supreme Court a petition in prohibition to prevent the judge of the Court of Common Pleas from proceeding on the widow's petition.
Mr. Herbert S. Duffy, attorney general, and Mr. Eugene Carlin, for relator.
Mr. Chauncey L. Newcomer, for respondent.
The basic question presented in this proceeding is whether the Court of Common Pleas has jurisdiction on appeal in view of the provisions of Section 1465-68 b, General Code.
It was contended by the Industrial Commission that the Court of Common Pleas had no jurisdiction of the cause in question. In order to determine the question of jurisdiction that tribunal would be obliged to consider the character of the claim which might necessitate an examination of the record of the proceedings had before the Industrial Commission. It appears further that only after the consideration of several motions by the Court of Common Pleas and its rulings thereon adverse to the Industrial Commission, did the relator file the instant proceedings in prohibition. The Court of Common Pleas is competent to determine its own jurisdiction and a writ of prohibition will not issue to prevent an anticipated erroneous judgment. State, ex. rel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430. The writ of prohibition is not available as a substitute for a proceeding on appeal. Silliman v. Court of Common Pleas, 126 Ohio St. 338, 185 N.E. 420.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.
The record shows that this was a claim for occupational disease, and under Section 1465-68 b, General Code, no appeal is provided when such a claim is denied by the Industrial Commission.