Decided June 9, 1954.
Mandamus — Power and authority to issue writ — Supreme Court — Refusal to issue for protection of private rights, when — Workmen's compensation — Employer's action to vacate order and correct records.
This is an original action in mandamus instituted by relator in this court against the three members of the Industrial Commission.
In its petition, relator alleges that it is a participant in the State Insurance Fund; that one McDole, an employee of relator, filed a claim with the Industrial Commission asserting that he sustained an injury in the course of and arising out of his employment with relator; that, on November 3, 1952, the commission made a final order disallowing that claim on rehearing for the reason that McDole's disability was not the result of an injury sustained in the course of and arising out of employment; that within 60 days thereafter and pursuant to Section 1465-90, General Code, McDole filed a petition with respect to disallowance of that claim in the Common Pleas Court of Franklin County and the Industrial Commission entered its appearance therein; that thereafter on January 8, 1953, the Industrial Commission made an order vacating said order of November 3, 1952, and allowing McDole's claim; and that relator's motion to vacate said order of January 8, 1953, was denied. Relator's prayer is for a writ of mandamus directing the Industrial Commission "to vacate and expunge from its records" the foregoing order of January 8, 1953, "to correct its records so that no order will appear" thereon relative to McDole's claim after said final order of November 3, 1952, "to make no order for payment * * * in connection with" McDole's claim, and "not to charge" relator's risk and experience by reason of said order of January 8, 1953. Relator further asks that it "be awarded" such other and further relief to which it may be entitled.
In its petition, relator alleges that the action of the Industrial Commission in vacating its order of November 3, 1952, will result in payment of money from the State Insurance Fund and that relator "will be deprived of * * * property without due process of law." In explanation of this allegation, the petition states further:
"Unless restrained by this court, respondent will charge said payments of compensation and medical expenses to the risk and experience of relator herein and will increase the amount of contributions payable by said relator to said trust fund to relator's damage and detriment." (Emphasis added.)
The cause came on for hearing before this court on the petition of relator, the answer of respondents, relator's reply and the stipulation of the parties.
Mr. Russell P. Herrold, Jr., and Messrs. Vorys, Sater, Seymour Pease, for relator.
Mr. C. William O'Neill, attorney general, and Mr. Paul Tague, Jr., for respondents.
The writ is denied for the reasons stated in support of the decision in State, ex rel. Allied Wheel Products, Inc., v. Industrial Commission, ante, 555.
WEYGANDT, C.J., MIDDLETON, TAFT, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.
HART, J., not participating.