
    Lacher v. Roxana Petroleum Corp.
    (Decided April 24, 1931.)
    
      
      Mr. John F. McCrystal, for plaintiff in error.
    
      Messrs. King, Ramsey d> Flynn, for defendant in error.
   Williams, J.

Edward J. Lacher brought an action in the court of common pleas against Roxana Petroleum Corporation to recover damages for alleged malicious assault and battery claimed to have been inflicted upon the plaintiff by one of defendant’s employees, while in the course of his employment, on October 3, 1928. The defendant pleaded facts which showed that it came within and had complied with the Workmen’s Compensation Act and had paid the premiums required thereby, and the reply admitted such employment and the payment of premiums.

The trial court sustained a motion for a judgment in favor of the defendant upon the pleadings upon the theory that the claim was compensable, that under the provisions of the Constitution of Ohio and the Workmen’s Compensation Act there could be no recovery of damages, and that to pursue the right to compensation was the exclusive remedy of the plaintiff. Edward J. Lacher, plaintiff below, brings this proceeding in error and maintains that the court below erred in sustaining the motion.

Article II, Section 35, of the Constitution of Ohio, gives to the General Assembly power to enact a workmen’s compensation law. This constitutional provision was amended by vote of the people at the election of November, 1923, and the amendment became effective January 1, 1924. Section 1465-76, General Code, was enacted by the General Assembly previous to the adoption of this amendment. The statute must give way to the constitutional provision, as amended, which contains this language:

“Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”

There is also provision for increased compensation, not exceeding 50 nor less than 15 per cent., in case the commission finds there has been a violation of a lawful requirement. Under this constitutional provision as amended, injury by willful act of the employer is compensable, but cannot be made the basis of an action for damages.

Counsel for plaintiff in error relies on Boek v. Wong Hing, 180 Minn., 470, 231 N. W., 233, 72 A. L. R., 108. We are of the opinion that, by reason of the constitutional provision quoted, that case has no application to the instant case.

The judgment will therefore be affirmed.

Judgment affirmed.

Lloyd and Richards, JJ., concur.  