State ex rel. Allied Wheel Products v. Industrial Commission, 33891

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

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[120 N.E.2d 422] 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.

Page 556

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

Page 557

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...