¶1 The argument presented here in support of respondent's demurrer should have been addressed to the Court of Common Pleas upon the appeal under Section 1465-90, General Code. The matter is now res judicata. Respondent's demurrer is overruled. *254
¶2 What has been said in the case of State, ex rel. Moore , v.Industrial Commission, ante , 241, this day decided, applies equally to the facts in this case.
¶3 It follows, therefore, that a peremptory writ of mandamus should issue commanding respondent to pay to the relatrix not less than the minimum amount fixed by paragraph 2 of Section 1465-82, General Code, and in the manner provided in the first two paragraphs of Section 1465-83, General Code.
¶4 Writ allowed.
¶5 WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and WILLIAMS, JJ., concur.
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Case posture Posture IN MANDAMUS.
Relatrix filed her petition in mandamus in this court setting forth:
1. That Martin W. Morand, the husband of relatrix, on November 29, 1930, while in the course of his employment by the Ault Wiborg Varnish Works, Inc., fell a distance of twelve feet while inspecting the air system fire sprinkler of such corporation, thereby sustaining certain injuries which disabled him continuously until October 12, 1940.
2. That Martin W. Morand received some small compensation during 1930, and that the relatrix, as his widow, has received recompense for his funeral expenses since his death.
3. That Martin W. Morand, as the result of his injuries sustained on November 29, 1930, died on October 12, 1940. (Nine years and ten months after the date of injury.)
4. That proper and seasonable procedural steps were taken before the Industrial Commission by the relatrix, and that the commission disallowed her claim on rehearing for the reason that her decedent's death was not the result of an injury sustained in the course of and arising out of his employment with the employer named.
5. That the relatrix, on the fourteenth day of April 1942, filed her petition in the Court of Common Pleas of
Hamilton county, whereupon, issues having been properly joined and a jury trial had, the jury found in favor of the plaintiff (relatrix) and judgment was rendered by the court in favor of the right of relatrix to participate in the state insurance fund, according to law, for the death of her decedent.
6. That in spite of her demands, the respondent, pursuant to such judgment of the court, paid her the sum of $200 funeral expenses, and that sum only.
Upon this statement of facts the relatrix is seeking a writ of mandamus compelling the Industrial Commission to grant her compensation in the sum of sixty-six and two-thirds per cent of the average weekly wages of said Martin W. Morand, which appear in the records of the commission, not to exceed $18.75 per week for the period of eight years from the date of the injury of said Martin W. Morand, and in any event a sum not less than $2,000 nor more than $6,500, less compensation already paid him, all in accordance with Section 1465-82, General Code.
The respondent filed a demurrer to the petition and by agreement of parties the case is to be disposed of finally upon the demurrer. Source: CourtListener
Court 