State ex rel. Allied Wheel Products v. Industrial Commission

• Decision Date: 09 June 1954
• Docket Number: No. 33891,33891
• Citation: 120 N.E.2d 421,161 Ohio St. 555
• Parties: , 53 O.O. 419 STATE ex rel. ALLIED WHEEL PRODUCTS, Inc., v. INDUSTRIAL COMMISSION et al.
• Court: Ohio Supreme Court

Page 555

161 Ohio St. 555

120 N.E.2d 421, 53 O.O. 419

STATE ex rel. ALLIED WHEEL PRODUCTS, Inc., v. INDUSTRIAL COMMISSION et al.

No. 33891.

Supreme Court of Ohio.

June 9, 1954.

Syllabus by the Court.

Since both the Common Pleas Court and the Court of Appeals have the power and authority to issue a writ of mandamus, the Supreme Court, in the exercise of its discretion, will ordinarily refuse to issue the extraordinary writ of mandamus where the purpose of the relator is primarily the enforcement or protection of purely private rights.

This is an original action in mandamus instituted by relator in this court against the Industrial Commission, herein referred to as respondent, and the three members of that commission.

In its petition, relator alleges that one of its employees, herein referred to as claimant, filed with respondent an application for an additional award for violation of a specific requirement causing an injury to such claimant on September 12, 1950; that the only specific requirement set forth by claimant as applicable to her claim did not become effective until 1951; that, on December 23, 1952, which was more than two years after the date of claimant's injury, claimant attempted to amend her application by setting forth another specific requirement as applicable to her claim; that respondent thereafter made an order that, as a result of relator's violation of such other specific requirement, claimant was injured and granting claimant an additional award in an amount equal to 50 per cent; that relator duly filed a motion for rehearing which was denied; and that relator has exhausted all its remedies by way of proceedings before respondent.

The prayer of relator's petition is 'that a * * * writ of mandamus issue commanding the respondents to vacate and set aside their order * * * denying relator's motion for a rehearing and affirming their prior order * * * granting claimant's application for an additional award, and fixing such additional award in an amount equal to 50 per cent of the maximum weekly rate (or in the alternative to enter a revised order fixing such additional award in an amount not exceeding 15 per cent of the maximum weekly rate); to vacate and set aside the referral of such additional award to the auditing section for collection from relator; to vacate and set aside the assessment by said auditing section against relator of the amount of such award * * *; and to vacate and set aside any attempted certification of such assessment to the Attorney General for collection.'

Respondent has demurred to the petition.

Cobourn, Yager, Notnagel, Smith & Moran, Fred A. Smith and Richard H. Conn, Toledo, for relator.

C. William O'Neill, Atty. Gen., Paul Tague, Jr., and James F. DeLeone, Columbus, for respondents.

TAFT, Judge.

It is the contention of relator (1) that Section 1465-72a, General Code, and respondent's rules governing procedure in a claim for additional award, which are set forth so far as pertinent in the petition, require an application for such an additional award to be filed within two years after the date of the injury and require that said application set forth 'the section or sections of the law or code of specific requirements applicable,' and (2) that under said rules and that statute no award can be made for wiolation of a specific requirement which was not set forth in or added to an application for an additional award by amendment thereto prior to the expiration of such twoyear period. In support of that contention, relator relies upon State ex rel. DeBoe v. Industrial Commission, 161 Ohio St. 67, 117 N.E.2d 925. See also State ex rel. Fruehauf Trailer Co. v. Coffinberry, 154 Ohio St. 241, 95 N.E.2d 381, and State ex rel. Carr v. Industrial Commission, 130 Ohio St. 185, 198 N.E. 480.

The question raised by the demurrer is whether relator is entitled to an issuance by this court of the extraordinary writ of mandamus.

The General Assembly, in accordance with its authority as recognized in Section 3 of Article IV of the Constitution, has conferred upon the Common Pleas Court the authority and power to issue a writ of mandamus. Section 12284, General Code. It would appeal therefore that, if relator had instituted this action in the Common Pleas Court instead of in this court, it could have sought from that court the same relief which it seeks by its original action in this court. Likewise, Section 6 of Article IV of the Constitution confers upon the Courts of Appeals of this state original jurisdiction in mandamus.

Since both the Common Pleas Court and the Court of Appeals have the power and authority to issue such a writ, this court, in the exercise of its discretion, should use some discrimination in determining whether the controversy involved in an original action for mandamus in this court is such as to justify bringing the cause immediately to the Supreme Court instead of presenting it in the first instance to the Common Pleas Court or perhaps to the Court of Appeals. State ex rel. Werden v. Williams, 26 Ohio St. 170.

Relator has referred to several cases where this court, at the request of an employer, either issued a writ of mandamus or of prohibition against the Industrial Commission or recognized that the employer might be entitled to issuance of such a writ. State ex rel. Fruehauf Trailer Co. v. Coffinberry, supra; State ex...