Opinion
No. 29953
Decided June 21, 1944.
Mandamus — Writ issued to require performance of duty by administrative board — Writ not issued in second action — To require performance of acts ordered in first action — Workmen's compensation — Impairment of earning capacity.
Where a court of competent jurisdiction has issued a writ of mandamus to require the performance of a legal duty by an administrative board, thereafter in a second action between the same parties a writ of mandamus will not be issued to require the performance of what the court in the first action has already ordered to be done. ( State, ex rel. Brophy, v. City of Cleveland, 141 Ohio St. 518, approved and followed.)
IN MANDAMUS.
Fred Waller (relator) filed his petition in this court praying that a writ of mandamus issue commanding the Industrial Commission of Ohio (respondent) "to make its order definite and certain by fixing the grounds upon which its order of `arbitrary impairment' was based and to make said order definite and certain by stating by what legal authority it arrived at such a conclusion."
It is averred in the petition that on December 21, 1943, the Industrial Commission made an order finding an "arbitrary impairment" in relator's earning capacity of one dollar per week which was not in keeping with a mandatory order of the Court of Appeals as follows:
"The court therefore finds that the relator herein is entitled to a peremptory writ of mandamus and it is ordered, adjudged, and decreed that a peremptory writ of mandamus issue commanding the commission to immediately pay the claimant not less than the minimum amount fixed by Section 1465-80, General Code, the same to be paid to the claimant under the provisions of that section."
It is further averred that on December 20, 1943, the respondent made the following order:
"* * * 12-16-43 This claim came on to be heard pursuant to the writ of mandamus issued by the Court of Appeals for Franklin county, which writ was affirmed by the Supreme Court of Ohio in the case of State, ex rel. Waller, v. Industrial Commission. It appears from the record that notice was heretofore sent to the claimant and his attorney pursuant to the writ of mandamus advising them that at said hearing they would be given further opportunity to present evidence in support of the claim to compensation arising from the alleged impairment of earning capacity due to the bi-lateral herniae. It further appearing that at this hearing claimant and his counsel, after opportunity was given, stated that there was no further evidence to be presented to the claimant's behalf with respect to his impairment of earning capacity other than that which was already in the claim file.
"It further appearing that after inquiry claimant and his counsel did not desire that this claim be further continued for investigation or the taking of oral testimony, the commission finds that from the evidence now in the record that there was no impairment of earning capacity from the date of the injury on May 10, 1938, to December 5, 1941, the date of the judgment of the Court of Common Pleas of Franklin county finding that claimant was entitled to participate in the state insurance fund.
"Now, therefore, in compliance with the writ of mandamus heretofore mentioned, and in order to pay some compensation to the claimant under the provisions of Section 1465-80, General Code, the commission now finds an arbitrary impairment in earning capacity to the extent of $1.00 per week for the period from May 15, 1938, to December 5, 1941, incl.; that temporary partial compensation be granted to the claimant on an impairment of $1.00 per week from May 10, 1938, to December 5, 1941, incl., less the first seven days of disability.
"It is further ordered that the statutory attorney fees be paid B.F. Hughes on the basis of this award as per the journal entry of the Common Pleas Court of Franklin county and that warrants for compensation and counsel fees be issued forthwith and sent to R.E. Schumaker for delivery.
"With respect to that portion of the commission's order and finding of June 16, 1942, pertaining to the granting of authority for correction of the bi-lateral herniae and the payment of compensation, medical and hospital expenses following the operation in accordance with the medical proof submitted, the commission now orders that this portion of said finding be reaffirmed.
Relator alleges also that such order "is not in keeping with Section 1465-90, General Code, under which this action is brought, * * *."
The respondent filed a general demurrer upon the ground "that it [the petition] does not contain facts sufficient to constitute a cause of action."
The cause was submitted upon the petition and the demurrer thereto.
Other facts are stated in the opinion.
Mr. Benjamin F. Hughes, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for respondent.
We are advised by the allegations of the petition that the Court of Appeals ordered the respondent to pay claimant not less than the minimum amount fixed by Section 1465-80, General Code. That section reads in part as follows:
"In case of injury resulting in partial disability, the employee shall receive sixty-six and two-thirds per cent of the impairment of his earning capacity during the continuance thereof, not to exceed a maximum of twenty-one dollars per week, nor a greater sum in the aggregate than four thousand dollars."
This court affirmed the judgment of the Court of Appeals and Judge Matthias, writing for the court, said:
"The extent of disability, whether temporary or permanent, as well as the extent of impairment of earning capacity, are matters committed to and are to be determined by the Industrial Commission. The commission has continuing jurisdiction in such cases and is authorized to make future findings and orders as conditions and circumstances require. It is incumbent upon the commission, however, to afford opportunity for the presentation of evidence and therefrom determine the extent of the impairment of the earning capacity of the claimant which existed at the time of the finding and order of the Court of Common Pleas and to make an award in accordance with the provisions of the workmen's compensation law." State, ex rel. Waller, v. Industrial Commission, 142 Ohio St. 193, 51 N.E.2d 643.
The record discloses that thereafter respondent advised relator that he would be granted a hearing, at which time he could present evidence in support of the claim to compensation arising from the alleged impairment of earning capacity due to bi-lateral herniae. At the time of the hearing relator stated that there was no further evidence to be presented other than that which was already in the claim file. Relator did not desire the matter continued for investigation or the taking of testimony and thereupon respondent made the order which is the basis of this suit.
The real gist of relator's complaint is that respondent has failed to comply with the judgment of the Court of Appeals in the prior case.
In the case of State, ex rel. Brophy, v. City of Cleveland, 141 Ohio St. 518, 49 N.E.2d 175, paragraph two of the syllabus reads as follows:
"A writ of mandamus will not issue in a second action between the same parties or between parties representing such parties to require the performance of what the court in the first action has already ordered to be done."
In that case Judge Hart, writing for the court, says at page 521:
"Furthermore, the relief sought in this case, as shown by the petition, is identical with that sought and and heretofore granted by the court in the case referred to in relator's petition. ( Hartwig Realty Co. v. City of Cleveland, supra [ 128 Ohio St. 583, 192 N.E. 880].) A writ of mandamus will not issue in a second action between the same parties or between parties representing such parties to require the performance of what the court in the first action has already ordered to be done. It would be a vain thing for this court to grant a peremptory writ to require the performance of what the court has already ordered, and since the granting of such a writ is a matter of discretion with the court and not a matter of right, it will not grant such relief a second time. ( State, ex rel. Mettler, Pros. Atty., v. Stratton et al., Commrs., 139 Ohio St. 86, 38 N.E.2d 393.")
That case is dispositive of the question here presented.
We are therefore of opinion that the demurrer should be and hereby is sustained and the petition dismissed.
Demurrer sustained and petition dismissed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and WILLIAMS, JJ., concur.
TURNER, J., not participating.