
    OHIO PUB. SER. CO. v. SHARKEY, Admr.
    Ohio Supreme Court.
    No. 20522.
    Decided Dec. 28, 1927.
    Error to Trumbull Appeals.
    Judgment affirmed.
    456. EMPLOYER AND EMPLOYE — 1283. Workmen’s Compensation.
    1. Action at law for death, injuries or occupational disease is abrogated by Art. II, Sec. 35 of the Ohio Constitution is action which existed in favor of employe against his own employer.
    2. Art. II, Sec. 35 does not bar action at law by administrator of employe against third person.
    3. Recovery in such action can be only pro tanto, and for such portion of damage not compensated for by allowance under Workmen’s Compensation Act.
   ALLEN, J.

1. The action at law for death, injuries or occupational disease, which is abrogated by Section 35, Article II, of the Ohio Constitution effective January 1, 1924, is the action which existed in favor of the employe against his own employer.

2. Section 35, Article II, of the Ohio Constitution, effective January 1, 1924, does not bar an action at law by the administrator of an employe against a third person for the employe’s death resulting from injuries received in the course of his employment and alleged to have been caused by such third person, where both the third person and the employe’s employer have complied with the Workmen’s Compensation Act and compensation has been accepted for the death of such employe by his widow. •

■ 3. Recovery in such action at law can only be pro tanto, and only for such portion of the damage as has not been compensated for by allowance under the Workmen’s Compensation Act.

(Day, Kinkade, Robinson, Jones and Matthias, JJ., concur.)  