
    No. 26
    INDUSTRIAL COM. v. FLAHERTY
    Ohio Appeals, 7th Dist., Mahoning County
    Decided Nov. 2, 1923
    1263. WORKMEN’S COMPENSATION — Suit, begun against employer after claim filed for award, does not destroy right to the award; nor does compensation received from employer.
    Attorneys — John G. Price, R. R. Zumerhly, H. H. Hull and T. J. Thomas, Columbus, for the Commission; L. L. George, Youngstown, for plaintiff.
   POLLOCK, J.

Epitomized Opinion

First Publication of this Opinion

Gertrude Flaherty, who had sustained injuries in the employ of the Book Shoe Co., made application to the Industrial Commis-' siori for an award. Shortly afterward she brought an action in the Common Pleas against the Shoe Company to recover damages for her injuries and later that action was settled and dismissed, she signing a release of all claims against the shoe company for the consideration of ?250.

The Industrial Commission because of the action against her employer, refused her application, whereupon she appealed to the Com-•mqn Pleas, where she obtained a verdict in her favor. The Industrial Commission prosecuted error to the Court of Appeals, which held:

1. By 1465-76 GC. an employee has an option either to sue his employer or claim compensation under the act, and an election of either right waives the other. When plaintiff filed her application with the Commission she waived her right to bring action against her employer. After her election to apply to the Commission was made the filing of the action against her employer did not destroy her previous election or deprive her of the right to continue her claim for award.

2. The right to an award from the Industrial Commission and an action prosecuted against an employer are two separate things. The mere receipt from the employer of com-from the Commission. Pleas affirmed. pensation in settlement of the action did not preclude plaintiff from receiving an award Judgment of Common  