State ex rel. Hoschar v. Industrial Commission

135 Ohio St. (N.S.) 445

• Court: Ohio Supreme Court
• Decided: May 24, 1939
• Docket: No. 27547
• Status: Published

Opinion

By the Court.

The writ of mandamus will issue to compel the exercise of discretion, but not to control it. 25 Ohio Jurisprudence, 1003, Section 28; Sutphin v. State, ex rel. Jeby, 130 Ohio St., 183, 198 N. E., 483.

The petition pleads that the respondent made payments and then failed and refused to pay, but that pleading does not set forth in full or in substance the order of the commission discontinuing payments. If the order is based upon the ground that the injured employee has been fully compensated, the determination of the commission is final and mandamus will not lie in the absence of abuse of discretion. State, ex rel. Stahl, v. Industrial Commission, ante, 168; State, ex rel. Depalo, v. Industrial Commission, 128 Ohio St., 410, 191 N. E., 691.

If the commission discontinued compensation on a jurisdictional ground, an application for rehearing could be filed under Section 1465-90, General Code, and an appeal taken after adherence to its former order by the commission; in which event, mandamus would not lie as there is an adequate remedy at law.

The demurrer will be sustained and leave will be granted to amend the petition.

Demurrer sustained.

Weygandt, C. J., Day, Zimmerman, Myers, Matthias and Hart, JJ., concur.