
    BUMGARD v. CLEVELAND RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7459.
    Decided Oct. 25, 1926.
    First Publication of this Opinion.
    1283. WORKMEN’S COMPENSATION-923. Pleadings — On appeal from finding of Industrial Commission, failure to allege in petition, • where death occurred more than two years after injury, that the compensation was continuous or that the disability was continuous, warrants court in giving defendant judgment on the pleadings.
    Error to Common Pleas.
    Judgment affirmed.
    
      W. S. Fitzgerald, Cleveland, for Bumgard.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
   VICKERY, J.

Plaintiff in error’s decedent, her husband, was employed by the Company as a conductor. In 1920 he was injured and an application for compensation was made to the Industrial Commission. The Company, a self-insurer, was directed to pay compensation for disability, which it did for a period of time.

Bumgard recovered, apparently, and returned to work. About a year after his return, he contracted a cancerous growth, from which he died. It is claimed that this cancerous growth was caused by the injury in 1920. The Commission refused compensation on the ground that the death did not occur within two years from the time the accident occurred, whereupon an appeal was taken to the Cuyahoga Common Pleas, which court granted a motion for judgment on the pleadings in favor of the Company.

It was alleged that the accident occurred in 1920 and death occurred in 1924, more than two years after the accident. The beneficiaries are entitled, under the statute, to compensation for such death, in case there had been continued disability, or a continuous paying of compensation. Neither appears in the petition.

The petition did not state a cause of action and the judgment of the Common Pleas Court ’was right.

(Levine, PJ., and Sullivan, J., concur.)  