183 N.E. 865 | Ohio | 1932
Lead Opinion
This matter coming on to be heard upon the demurrer of the relator, Joseph Cezkovsky, to the first and second defenses of the answer of the respondent was argued by counsel and submitted to the court; upon consideration whereof, said demurrer to the first defense is overruled because the same contains a general denial of matters not specifically admitted, thus tendering an issue; and the demurrer to the second defense is overruled for the reason that the answer pleads that the Industrial Commission was of opinion that the medical testimony offered by the applicant was not of such character as to justify final action, and that the Industrial Commission retained jurisdiction of the claim and is willing to consider any evidence which the applicant might wish to offer on this or any other phase of his case, and no final denial upon jurisdictional grounds of the right of the said Cezkovsky to participate in the state insurance fund has been found by the Industrial Commission.
Leave is granted to relator to plead on or before January 14, 1933.
*40Demurrer overruled.
MARSHALL, C.J., JONES, MATTHIAS, DAY and STEPHENSON, JJ., concur.
KINKADE, J., not participating.
Concurrence Opinion
I concur in the conclusions reached in this case, as expressed in the journal entry, and as reasons for my concurrence state that the second defense of the answer shows that the commission is still retaining the claim and thereby recognizing its jurisdiction to determine the amount of disability and compensation. The way is still open to relator to present further evidence of his disability and also further evidence to show that the disability is due to an accident sustained in the course of his employment. If relator's complaint is that the commission does not definitely and finally pass upon his claim and thereby lay the foundation for rehearing and ultimate appeal, it seems to me that he has mistaken his remedy, and that what he should invoke is the jurisdiction of this court for a writ of procedendo to compel the commission to enter a final order in the case. It would seem, however, that even this course should not be necessary, in view of the commission's insistence that it stands ready to receive further evidence, and there is no apparent disposition to refuse to make final disposition.
In the argument of this case, it is claimed that it presents a parallel situation to that which the court heard and decided in State, ex rel. Araca, v. Industrial Commission,
*42STEPHENSON, J., concurs in the foregoing concurring opinion.