
    The State, ex rel. Fioretos, v. Industrial Commission of Ohio.
    
      Workmen’s compensation—Dependents of killed employe residents of foreign country—Consul to furnish information as to dependents before award payable—Section H65-108, General Code—Mandamus.
    
    Where the dependents of a killed employee entitled to share in the funds provided for in the Workmen’s Compensation Act of Ohio reside in a foreign country, the Industrial Commission is not required to pay such award to the dependents of such killed employee until the consul, or other proper officer, as provided in Section 1465-108, General Code, shall furnish the necessary information regarding such dependents, and in the absence of such information a writ of mandamus to compel such allowance should be denied.
    Workmen’s Compensation Acts, C. J. §49 (Anno.).
    (No. 19301
    Decided February 16, 1926.)
    In Mandamus.
    This is an original action in this court for writ of mandamus, brought on relation of Michael Fioretos. The petition discloses that on the 6th day of January, 1923, one Peter Pappas, also known as Panagiotis Astropiris, while in the course of his employment as an employee of the National Tube Company of Lorain, Ohio, was killed by accident, leaving a wife and five children, all citizens and residents of Greece.
    The relator claims to have a power of attorney and to be attorney in fact of said wife and children, duly authorized, with full power and authority by them to do everything necessary in the prosecution of a claim for wrongful death of the deceased husband and father, and to execute all receipts and releases and all other papers necessary in the premises.
    The petition further avers that a claim was duly filed with the Industrial Commission of Ohio by the relator, but that the Industrial Commission has, as relator claims, unlawfully refused to recognize the power of attorney herein referred to, and has unlawfully refused to make an award until such time as the Creek consul in this state is given a power of attorney from the heirs to act. Relator therefore prays a writ of mandamus commanding the Industrial Commission of Ohio to recognize his power of attorney, and to make such award as is proper in the premises to the relator, and to pay the relator such sum or sums as may be awarded to the dependents of said Peter Pappas, alias Panagiotis Astropiris.
    To this petition the Industrial Commission has filed an answer setting up two defenses:
    First, while it is admitted that Pappas was killed in the course of his employment with the National Tube Company of Lorain, Ohio, on the date averred in the petition, defendant denies that the relator has power of attorney signed and executed by the persons alleged to be dependent, and, while defendant admits a claim was filed with the commission as alleged in the petition, defendant denies that it has unlawfully refused to recognize the power of attorney of the relator and has unlawfully refused to make an award until such time as the Greek consul in this state is given a power of attorney from heirs of the deceased.
    Second, the commission says that it has not delayed the claim filed on account of any power of attorney or lack of any power of attorney on the part of any person, but that it has no authority in law to transmit any award or order any compensation, paid on account of the death of Peter Pappas, to any person save and except the dependents, and that it has continued the case until further and proper proof of dependence has been furnished by the Greek consul in this state, as provided in Section 1465-108 of the General Code. The . defendant further alleges that when such proof has been filed it will then pass upon such claim and dispose of it according to the facts and evidence so submitted.
    The defendant, having answered the petition of the relator, then prays that the writ of mandamus be denied.
    
      Mr. C. A. Tsangadas, for relator.
    
      Mr. G. C. Grabbe, attorney general, and Mr. R. R. Zurmehly, for defendant.
   Day, J.

There are two reasons why the writ of mandamus prayed for in this proceeding should be denied:

First, there is an issue of fact tendered by the pleadings, which raises the question whether or not the persons signing the alleged power of attorney of the relator are in fact all the dependents of Peter Pappas, alias Panagiotis Astropiris. There is no testimony or evidence offered in support of the affirmative of these issues of fact, and, the burden being upon the plaintiff to show his right to a writ of mandamus, and having failed to so do, it follows that upon that ground the writ should be denied. Even though this objection should be overcome, and the evidence produced, as claimed by the relator, there is a further reason why the writ should be denied.

It is provided by Section 1465-108, General Code, as follows:

“When the dependents of killed employes reside in a foreign country, the consul general, consul, vice-consul, or consular agent, duly accredited to the consular district within which such killed employe lived at the time of his decease by the country wherein such dependents of the killed employe reside, shall furnish the necessary information regarding such dependents of killed employes so that the state liability board of awards may transmit to such dependents the funds provided for in the compensation act of the state of Ohio, or any amendments thereto.”

Now this record discloses that the commission has continued this cause upon its records, awaiting action upon the part of the Greek consul in this state in furnishing the necessary information regarding the dependents of the killed employee, so that the Industrial Commission, as successor of the state liability board of awards, may transmit to such dependents the funds provided for in the Compensation Act of the state of Ohio.

It thus appears that the plain letter of the statute forbids the commission to act in the premises until the information to be furnished by the Greek consul is forthcoming. The record disclosing that the Greek consul has not yet furnished such information, it follows that the commission cannot make the award prayed for.

It is elementary that a writ of mandamus can only be issued when a clear right thereto has been shown by the relator, and, this record disclosing that no such right has been shown by the evidence, and failing to disclose that the relator is entitled thereto by law, it follows that the same must be denied.

Writ denied.

Marshall, O. J., Jones, Matthias, Allen, Kinkade and Robinson, JJ., concur.  