
    Industrial Commission of Ohio v. Madden.
    
      Workmen’s compensation — Right to participate in fund and appeal to common pleas court — Estimated payroll not filed and company reported operations discontinued — Employe killed thereafter and employer’s insurance can-celled — Employe’s dependents filed application for award from non-complying employer — Section H65-7A, General Code — Award granted, certified for collection and employer reported as insolvent — Employer later tendered payroll premium during time of accident — Industrial commission found payment subterfuge, employer not insured, and denied award.
    
    (No. 19449
    Decided June 15, 1926.)
    Error to the Court of Appeals of Mahoning county.
    ■ This action was instituted in the court of common pleas of Mahoning county, and was an appeal from an order of the Industrial Commission of Ohio refusing to award to Martha M. Madden, the widow of Everett Madden, deceased, and her four dependent minor children, compensation for the death of Everett Madden. The trial of the case in the court of common pleas resulted in a verdict and judgment in favor of Martha M. Madden, which was affirmed by the Court of Appeals.
    The questions of law presented grow out of a peculiar state of facts which may be stated, in substance, as follows: At the time of his injury and death, on April 13, 1921, Everett Madden was in the employ of the Callahan Coal Company. That company had complied with the Compensation Act by paying its premium in 1918, and had continued regularly to make payments thereon until March 4, 1921. On the latter date the company returned to the commission the blank theretofore sent to it for the purpose of making a report of its pay roll for the six months prior to March 4, 1921. It did not send its check for the estimated premiums for the next six months, nor fix the estimated pay roll for such period, • but indicated that it had abandoned its operations, and that there would be no pay roll during the period stated; the notation upon the blank being: “None; operations discontinued.”
    It is disclosed that subsequent to that time it was decided to pull the' pillars from the old mine, and it was while performing that work that Everett Madden was killed. Upon that same date the company completed a sale of its property.
    The Industrial Commission, on March’ 4, 1921, had cancelled the insurance of the Callahan Coal Company. On July 21, 1921, the' dependents filed an application with the commission seeking a determination of the compensation due from the company as a noncomplying employer under Section 1465-74, General Code, and the commission made an award which the company was ordered to pay. Subsequently the claim was certified to the Attorney General for collection, who reported that the'company was insolvent and no collection could bé made from it. Thereafter the situation was further investigated by the Industrial Commission through its inspectors, who reported with reference to the operations of the' company subsequent to March 4, 1921, that the work was continued until April 30, 1921, and that between the two last-named dates the company had been operating and had a pay roll of $1,359.02 at the mine, and of $140 at the office. Thereafter, on November 28, 1922, the commission made an order wherein it determined the amount of premium due from the company on its pay roll expenditure in accordance with said report, and fixed the amount of premium due thereon at $58.86, and on December 18, 1922, that premium, together with the penalty, was paid to. the Industrial Commission. No further action was taken by the commission until June 2, 1923, when the comr mission made an order wherein it recited the action theretofore taken with reference to the matter, and further recited that the claimant, being unable to collect from the Callahan. Coal Company the amount of the award theretofore made to her by the commission, had filed her claim with the commission as a claim against the state insurance fund. Thereupon the commission announced its .finding that “the law does not warrant the granting of an award from the state insurance fund to an injured employe, or the dependents of a killed employe, of an employer who had not paid premium into the state insurance fund so as to have had coverage under the Workmen’s Compensation Law prior to and at the time of the injury or death, and that the payment of.premium * * * was a subterfuge.” The commission thereupon denied the claim, and refused the award, for the reason that there was no coverage at the time of the accident. On July 17, 1924, a. tender of the amount paid as premium and penalty was made to the company and refused.
    
      
      Mr. G. G. Grabbe, attorney general, and Mr. Wilbur E. Benoy, for plaintiff in error.
    
      Mr. R. L. Schiller, and Messrs. Harrington, DeFord, Huxley £ Smith, for defendant in error.
   By the Court.

It is observed that under the facts found by the commission the Callahan Coal Company continued to be an employer under the terms of the Workmen’s Compensation Act during the period within which occurred the death of its employe Madden. It must be conceded under the facts shown by the record that, had the company sent in its estimated pay roll on March 4, together with a check covering the same for the succeeding period of sis months, the dependents of the killed employe would have been entitled to compensation from the fund. Are they precluded from such relief by reason of the circumstances disclosed by the record? The provisions of the Compensation Act (103 O. L., 72) were designed and enacted primarily for the protection and benefit of employes and their dependents, and Section 28 thereof (Section 1465-75, General Code), was enacted for the purpose of safeguarding the rights and protecting the interests of an injured employe and the dependents of a killed employe from the result of the delinquency of the employer in the matter of the payment of premium. Under the provisions of that section it is the duty of the Industrial Commission to require payment of premiums or the furnishing of bond covering the same. Such delinquencies do not deprive an1 employe injured during such period of the benefit of thfe act. Even' 'if suit be required to collect the delinquent premium, and a judgment be procured under the provisions of Section 1465-75, the payment thereof would entitle the employe to .the benefit of the act from the date upon which the company became subject to the provisions of the act. Here the premium was subsequently paid, not as a result of a suit, but voluntarily, and the employe then became entitled to the. same right of. compensation out of the fund that he would have had if the premium had been paid when due.

The question presented here is not whether the employer can be relieved from the payment of the compensation to which the dependents were clearly - entitled, but whether the employe and his dependents are to be deprived of all benefits of the Compensation Act. '

The commission therefore had authority to make the order of November 28, 1922, and, under the facts presented by this record, could not thereafter relieve itself therefrom- by attempting to revoke the order and tendering back the premium paid in pursuance thereto. This order did not relate to matters of compensation, as to which the commission under the statute has continuing jurisdiction. The application was denied upon the ground that there was no coverage at the time of the accident, which was a ground going to the basis of the claimant’s right, and Avas therefore appealable.

Judgment affirmed.

Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  