
    No. 24
    WHITMORE, ADMR., v. INDUS. COMMISSION
    Ohio Supreme Court,
    No. 17237
    June 13, 1922
    For full opinion see 105 OS., 295
    WORKMEN’S COMPENSATION — (1) Appeal to common pleas, when award denied by commissioner. (3) Trials by jury to both parties. (3) Construction of statute. (4) Harmonizing with Constitution.
    Error to Lucas Court of Appeals.
    Attorneys — David E. Love and Fred E. Bruml, for plaintiff; B. A. Fouche, Pros., A. V. Bauman, Jr, and F. O’Farrell, for defendant.
   JOHNSON, J.

Epitomized Opinion.

John "W. Chrysler died leaving his widow a sole dependent. He was living with his wife at the time of his death. A short time thereafter she died, leaving-no person dependent upon her. The plaintiff was appointed her administrator, and he filed application-with the industrial commission for an award because of the death of Chrysler. The commission found that his death was not shown to have been caused by injury sustained in the course of his employment. Appeal was taken to the court of common pleas and the jury disagreed. At the next trial the plaintiff waived a jury. The defendant objected and demanded a jury trial. This the court overruled and the defendant took exceptions.

The court of appeals reversed the judgment on two grounds — that the court erred in refusing the jury trial, and that no award having been made in favor of the widow no case existed in favor of her administrator. The Supreme Court held:

1. Since the decision of the court of appeals in this case, this court has decided, 104 OS., 389, that it was not necessary that the award be made during the life of the widow.

2. The first part of Sec. 43 of the workmen’s compensation act where appears the clause “be entitled to a jury trial if he demands it,” secures the right to appeal to the employe. But in the balance of the section there are provisions which seem to give to the commission equal rights with the employe.

3. It would seem to be clear that the constitutional requirement of the equal protection of the laws would demand that the industrial commission should also be entitled to a jury trial.

4. It is a well established rule, that where the language will permit, such construction will be given to a statute as will bring it into harmony and with the letter and spirit of the Constitution.

The cause was remanded for a new trial, on the issues of fact going to the basis of the plaintiff’s claim, on which new trial either party shall be entitled to a trial by jury.  