
    The American Rolling Mill Co. v. Duncan, Guardian.
    
      (Decided June 24, 1935.)
    
      Mr. B. F. Harwits, Mr. G. W. A. Wilmer and Mr. Adrian Weinstein, for plaintiff in error.
    
      Mr. G. W. Elliott, for defendant in error.
   Matthews, J.

The defendant in error, Marie Duncan, guardian of William F. Duncan, appealed to the Common Pleas Court of Butler county from a denial by the Industrial Commission of her application for compensation on behalf of William F. Duncan against The American Bolling Mill Company, a self-insurer. The jury returned a verdict in her favor, and judgment was rendered on the verdict. The American Bolling Mill Company brought the case to this court on error to that judgment.

The parties will be referred to as employer and employee, or by name.

There is no dispute that William F. Duncan was employed by The American Bolling Mill Company on October 19, 1929, at its manufacturing establishment in Middletown, Butler county, Ohio, and that The American Bolling Mill Company employed more than three persons regularly in and about the same business at that time, and also that it had elected to compensate its employees directly for injuries occasioned in the course of the employment.

The evidence is abundant that on that day, while in the course of his duties, William F. Duncan accidentally received an injury to his leg in the form of an abrasion on the under side of his knee, and that this injury arose out of his employment. An abscess developed at the point of the injury, and there were symptoms that some harmful substance radiated from that point, involving the entire leg. In about a month the local injury and abscess healed, and the employee went back to work, but it is clear that from that time he did not have the same ability that he had prior to the injury. He had been employed for many years prior to the injury by this same company, and during such time had apparently had no difficulty in performing his duties. It developed almost immediately after he went back to work that his mind was affected, and it is pretty clear that that influenced the employer in finally dispensing with his services.

On August 13, 1932, Duncan was adjudged insane and committed to Longview Hospital.

The employer did not dispute the existence of the abscess, and the experts agreed that abscesses are caused by bacteria, or germs. The employer did deny, however, that the injury, if any, had anything to do with the abscess; or that the abscess had anything to do with the employee’s mental disability. The theory of the employee was that germs — specifically streptococci — lodged in the abrasion, causing the abscess, and that they spread through the system to the brain, causing that type of insanity known as meningo-encipholitis. There is substantial evidence to support this theory, and this court cannot say the jury was wrong in basing its verdict upon that evidence. We, therefore, pass to the other errors assigned.

It is claimed that no application for compensation was made within the two-year period required by Section 1465-72®, General Code, to the employer, or to a duly authorized agent. The employer was a self-insurer, and, therefore, the application should have been made to it. An oral application is sufficient. W. S. Tyler GCo. v. Rebic, 118 Ohio St., 522, 161 N. E., 790; State, ex rel. Bettman, Atty. Genl., v. Clow & Sons Co., 36 Ohio App., 156, 173 N. E., 14. We find that within a month after this injury oral application was made to the representatives of the employer, whose duty it was to report such matters. The employee immediately went to the employer’s private hospital, maintained for the purpose of taking care of injured employees. He was told that he was not entitled to treatment, apparently on the ground that his condition had not been caused by an injury occasioned in the course of his employment. Later, during the succeeding month, a claim for compensation was made to Walke and Byrum, agents of the employer, at the employee’s home in the employee’s'presence. Whether the words were spoken by the employee, or his wife in his presence, is immaterial. They were either spoken by him or on his behalf. We think this application was sufficient to. apprise the employer of the nature of the claim and that it was made to an agent authorized to receive it.

There is no dispute of the fact that the employee filed an application for adjustment of claim with the Industrial Commission, and that on November 16,1932, the commission made a finding that the proof “fails to show claimant’s disability was due to alleged injury sustained,” and further “that said application was not filed within the statutory two-year period from date of injury,” and, therefore, the claim was disallowed. Thereafter a rehearing was granted, evidence presented, and appeal taken within the statutory time after the disallowance of the claim upon the rehearing.

It is claimed that the application for a rehearing was not filed within thirty days after notice of the original disallowance of the claim by the commission.

The record leaves it in doubt as to just when notice was received by the employee. Until notice was received time did not begin to run. Section 1465-90, General Code. The record shows that on December 9, 1932, a letter was addressed to the Industrial Commission, in which it was stated that claimant desired a rehearing. This letter was received the next day, within 30 days of the disallowance of the claim, and, of course, within 30 days of receipt of notice of its disallowance. This letter was signed by an attorney, and presumptively he was authorized. But at that time the employee had been adjudged insane, and it is- claimed that that fact renders the letter ineffectual as an application. We do not understand an adjudication of insanity to have that nullifying effect upon acts thereafter done by the insane person, when beneficial to him. The institution of an action by an insane person in one of the judicial courts would not be a nullity. Upon discovery of the insanity, such action would be prosecuted by his guardian or trustee. Section 11249, General Code; 22 Ohio Jurisprudence, 85, Section 40, et seq.; 14 Ruling Case Law, 611. If the act of an insane person in filing a civil action will be given effect by the law, it would seem clear that an application for a rehearing before an administrative board, created especially to safeguard his interests, could not be given less effect. It would seem that until his incapacity was disclosed to the board his actions should be given full effect, and upon discovery of his incapacity the board should so act that he would lose no procedural right because of his incapacity. The guardian was appointed on December 13, 1932, and on December 22, 1932, she filed an application for rehearing on a form provided by the commission, in which she recited that a request for a rehearing had been filed by letter on December 9, 1932. If the analogies of court procedure are to control, this would seem to be sufficient.

Furthermore, it is entirely possible that the application by the guardian was filed within 30 days of receipt of notice, and the Industrial Commission evidently considered that it had been filed within time as it granted the rehearing. The commission having decided that question, the court would not be justified in disturbing the finding in the absence of evidence disclosing an abuse of discretion. State, ex rel. Allen, v. Industrial Commission, 127 Ohio St., 541, 189 N. E., 503. The evidence in this record does not prove an abuse of discretion.

Other errors in the admission of evidence and in the instructions to the jury are assigned, but they are not well taken, and are not prejudicial.

The basis of the plaintiff’s claim was the alleged injury of October 19, 1929. Compensation depended upon proof of that, and of the fact that his disability —insanity—was a proximate result of that injury. Denial of his right to compensation on the ground that his disability was not due to the injury sustained was a denial upon a jurisdictional ground, which could be reviewed by the court. State, ex rel. Cezkovsky, v. Industrial Commission, 126 Ohio St., 434, 185 N. E., 807, and Noggle v. Industrial Commission, 129 Ohio St., 495, 196 N. E., 377.

For these reasons the judgment is affirmed.

Judgment (affirmed.

Ross, P. J., and Hamilton, J., concur.  