
    Lyons v. Industrial Commission of Ohio.
    (Decided September 28, 1931.)
    
      Mr. George W. Gale, for plaintiff in error.
    
      Mr. Gilbert Bettman, attorney general, and Mr. Raymond J. Kunkel, for defendant in error.
   Ross, P. J.

This case comes into this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered in favor of the defendant, the industrial commission of Ohio.

The petition alleges that: “On or about the first day of October, 1917, the said James Lyons began his employment with the Cincinnati Chemical Company, Inc., as a general workman and laborer, and engaged in said occupation until on or about the 27th day of February, 1928, when he was compelled to quit on account of illness. Said illness was caused by the occupational disease known as aniline poisoning, which became chronic, causing him great suffering and resulting in complications that finally brought on his death on or about the 27th day of January, 1929. The illness and death of said James Lyons was caused by direct contact, by touch, inhalation and absorption of the various aniline dyes, chemicals and products manufactured by the Cincinnati Chemical Company, Inc.”

The petition further alleges that the company is required by the Workmen’s Compensation Law of Ohio to contribute to the occupational disease fund of Ohio for the benefit, of its employees and their dependents; that on the 4th day of February, 1929, the plaintiff in error filed her claim as widow of the decedent employee with the Industrial Commission of Ohio for compensation under the Workmen’s Compensation Act, General Code, Sections 1465-37 to 1465-110; and that upon hearing the claim was disallowed February 21, 1930, on the ground that the claim did not come within the occupational disease schedule, and that the commission did not have jurisdiction.

A demurrer to the petition was sustained, and, the plaintiff in error not desiring to plead further, judgment was entered for the defendant in error.

Nowhere in the petition is it alleged that the death of the employee was due to an occupational disease incurred by the employee as a result of the employment in which he was engaged, and for this, if for no other reason, the petition would be demurrable. As far as allegations of the petition go, Lyons might have incurred the disease from the use of chemicals “manufactured by the Cincinnati Chemical Company” at his home, or in some other employment. However, as the demurrer was sustained on the ground of lack of jurisdiction by the common pleas court, and this point has been urgently considered by both parties, we proceed to pass upon the ground of the demurrer also.

Section 1465-68a, General Code, provides for compensation for employees suffering by reason of occupational diseases contracted in the course of employment.

Section 1465-68b, General Code, provides in part as follows: “Every employee mentioned in the next preceding section and the dependent or dependents of such employee and the employer or employers of such employee shall be entitled to all the rights, benefits and immunities and shall be subject to all the liabilities, penalties and regulations provided for injured employees and their employers by Sections 1465-44 to 1465-108, General Code, inclusive, save and except Section 1465-90, General Code, which shall not apply to any case involving occupational disease, and also subject to such other modifications or exemptions hereinafter provided. ’ ’

Section 1465-90, General Code, provides: for appeal to the court of common pleas from the findings of the commission in certain cases.

The net result of the legislation involved is a failure to provide an appeal from a decision of the commission in the case of an occupational disease.

It is claimed that the legislation involved is unconstitutional. Even if an affirmative finding on this point did not deprive the plaintiff in error of the right to assert any claim even before the commission, it certainly could not be effective to create an appeal where none is provided by law. Arguments in support of the position of the plaintiff in error might well be addressed to the Legislature, but cannot be considered by a court, which is, of course, a nonlegislative tribunal.

It is equally plain, and has been so held, that the common pleas court has no inherent jurisdiction, exclusive of specific enactment, to entertain appeals from the commission.

It is urged that the plaintiff in error is without a remedy in law and has been ousted from her right to her day in court. This contention cannot be raised in this proceeding, which is not a suit against the employer, but a proceeding specifically stated in the petition to have been brought as an appeal from a decision of the commission.

For the reasons given the judgment of the court of common pleas is affirmed.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.  