Opinion
No. 37101
Decided January 31, 1962.
Appeal — Dismissal — No bill of exceptions — Mandamus to require payment of workmen's compensation.
APPEAL from the Court of Appeals for Franklin County.
The relatrix, Lucinda Sadler, instituted this action in mandamus in the Court of Appeals, naming as respondents the Baldwin-Lima-Hamilton Corporation, her deceased husband's former employer and a self-insurer under the Workmen's Compensation Act, and the Industrial Commission of Ohio. In her petition seeking an order for a writ directing the award of workmen's compensation, she alleges two causes of action, one for death benefits by virtue of her husband's death alleged to have been caused by an occupational disease, and the other for an award of change of occupation compensation.
Relatrix alleges that her husband was disabled due to silicosis; that his condition grew progressively worse; that he developed an intestinal ailment; that surgery was performed; that he failed to recover from the rigors of the operation; and that he contracted, in the course of his employment, an occupational disease within his lungs, which was the proximate cause of his death.
The Industrial Commission, in its answer to the first cause of action, after reciting facts relative to the claim, alleges that, when the claim was presented to it, it found that the evidence failed to show that the death of decedent resulted from silicosis or from any other compensable occupational disease contracted in the course of employment and ordered that the death claim be disallowed. Further answering, the commission specifically denies that its action in denying the application for death benefits was an error in law or an abuse of discretion.
The Court of Appeals, upon application of relatrix, dismissed her second cause of action and, on consideration of the pleadings and the evidence, found, as to the first cause of action, that the Industrial Commission did not grossly abuse its discretion and that the relatrix was not entitled to the relief prayed for and ordered that the petition be dismissed.
An appeal as of right brings the cause to this court for review.
Messrs. Rice, Rice Rice, for appellant.
Mr. Mark McElroy, attorney general, Mr. Alvin C. Vinopal, Mrs. Mary Spivey Durham and Mr. L.A. Obenshain, for appellees.
Since it appears from the record that the cause was heard by the Court of Appeals on the pleadings and evidence, and that there is no bill of exceptions before this court exemplifying the facts necessary in determining the issues presented, the appeal is dismissed. State, ex rel. Novak, v. Bright, 165 Ohio St. 363; In re Williams, 165 Ohio St. 511; In re Sublett, 169 Ohio St. 19.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and O'NEILL, JJ., concur.
HERBERT, J., not participating.