
    Westrich v. Industrial Commission of Ohio.
    (Decided June 10, 1935.)
    
      Messrs. Bauer & Bauer and Messrs. Shook, Davies, Hoover & Beall, for plaintiff in error.
    
      Mr i John W. B richer, attorney general, Mr. B. B. 
      Zurmetily and Mr. Stewart S. Cooper, for defendant in error.
   Ross, P. J.

This is a proceeding in error from the Court of Common Pleas of Hamilton county, wherein judgment was rendered in favor of the Industrial Commission, upon its demurrer to the petition of a claimant under the Workmen’s Compensation Act.

The claimant alleges in her petition that the injury occurred to her on September 13, 1928; that at that time she was a minor, 16 years of age, in the employment of the Jenny Company, in the city of Cincinnati, which company was a subscriber to the State Insurance Fund; that on January 18, 1932; while still a minor she made application for compensation, that her claim was disallowed, because filed more than two years from the date of the injury.

It is claimed that Section 1465-72a, General Code, does not bar the plaintiff’s claim for compensation. This section provides:

“In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, application shall have been made to the industrial commission of Ohio or to the employer in the event such employer has elected to pay compensation direct.”

No exception to this provision appears in the act in favor of minority. On the contrary, Section 1465-93, General Code, provides:

“A minor shall be deemed sui juris for the purposes of this act, and no other person shall have any cause of action or Tight to compensation for an injury to such minor workman, but in the event of the award of a lump sum of compensation to such minor employe, such sum shall be paid only to the legally appointed guardian of such minor.”

It is urged that the definite effect of these sections is obviated by the provisions of Section 11229, General Code, as follows:

“Unless otherwise specially provided therein, if a person entitled to bring any action mentioned in this chapter, unless for penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such person may bring it within the respective times limited by this chapter, after such disability is removed. When the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of all.”

It must be obvious that an application for compensation to the Industrial Commission is not “any action mentioned in this chapter,” which comes under the general Title IY, devoted to “Procedure in Common Pleas Court.” The special chapter referred to is “Limitation of Actions,” and the section comes under a subhead, “Saving Clause — Disabilities.” It must also be perfectly plain that the application of the claimant employee for compensation is not the bringing of an action.

In Industrial Commission v. Kamrath, 118 Ohio St., 1, at page 9, 160 N. E., 470, we find the following:

“Section 1465-72u reads:

“ ‘In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, application shall have been made to the Industrial Commission of Ohio or to the employer in the event such employer has elected to pay compensation direct.’

‘ ‘ The provisions of that section are wholly negative. That section confers no rights upon an injured employee or the dependents of a killed employee, but its whole effect is to limit rights elsewhere conferred upon them. It is strictly a statute of limitations and limits alike the rights of the injured employees, the rights of dependents of hilled employees, and the powers of the administrators of the fund.”

All through the Workmen’s Compensation Act the words “application” and “action” are distinguished.

However, it has been held that one seeking to profit. by the benefits of the Workmen’s Compensation Act must abide by its limitations.

In the case of Mueller, d. b. a. A. R. Mueller Printing Co., v. Eyman, a Minor, 112 Ohio St., 337, 147 N. E., 342, the syllabus is as follows:

“Under the provisions of Sections 1465-61 and 1465-93, General Code, enacted in 108 Ohio Laws, 316, 324, a minor 14 years and 7 months of age, working for hire and injured when those sections were in effect, is an employe of an employer, and, if the latter has complied with the Workmen’s Compensation Act, is deemed sui juris for the purposes of the act. Such minor having applied for and received compensation from the Industrial Commission under the act, can not thereafter maintain an action for damages against such employer.”

And at page 342 the court says:

“The decision of this court is in harmony with that in Lopez v. King Bridge Co., 108 Ohio St., 1, 140 N. E., 322, where the only distinction arises from the fact that there the minor was over 16 and under 18 years of age. The court there held that under the terms of Section 1465-93, General Code, in effect at the time of injury, such minor was sui juris; that he was amenable to the Workmen’s Compensation Law and was estopped from maintaining an action for damages after having elected to accept compensation.”

In the case of Foundry Appliance Co. v. Ratliff, Admr., 113 Ohio St., 1, 148 N. E., 237, paragraph one of the syllabus is as follows:

“By virtue of the provisions of Sections 1465-61 and 1465-93, General Code (108 O. L., 316, 324), all minor employees of employers complying with the Workmen’s Compensation Act are brought within the provisions of that act.”

And at page 6 the court says:

“The compensation law must be construed and applied as a whole, and the burdens thereof must necessarily be accepted by any one who seeks to secure its benefits. Section 6245-2, Q-eneral Code, is not a part of the Workmen’s Compensation Act, and, although not expressly repealed, cannot be held to apply to actions with reference to which a later statute prescribes a rule entirely different and wholly inconsistent therewith. The benefits of the compensation act can be accepted only with the burdens attached thereto. The right to maintain an action thereby conferred cannot be enjoyed without the restrictions therein imposed.”

The minor in the instant case seeks the benefits of the Workmen’s Compensation Act. That act provides a limitation upon the filing of her claim. It makes no exception in her favor, but, on the contrary, makes her sui juris. The authorities apply the limitations provided as well as extend the benefits of the act.

Judgment affirmed.

Matthews and Hamilton, JJ., concur.  