
    No. 612
    OLMSTED HOTEL CO. v. STATE ex
    No. 18736.
    Supreme Court
    Pending on motion of Hotel Co. to certify record.
    1283. WORKMEN’S COMPENSATION— When does state liability attach?
   This case involves the question whether. 1465-74 GC. 'as amended (103 OL. 82)' is in contravention of the constitution of Ohio and of the U. S.

Attorneys — Calfee, Fogg & White and O. A. Dickey, Cleveland, for Hotel Co.; C. C. Crabbe, Atty Gen., and R. R. Zurmehly, Columbus, and David E. Green, Cleveland, for the State.

The State recovered a judgment in the Cuya-hoga Common Pleas June 30, 1924. In the petition the relator, the Attorney General, alleged that on and before July 7, 1920, the Olmsted Hotel Co. was a corporation, engaged in the hotel business at Cleveland, 'and operated the Winton Hotel and that prior to that date it had failed to comply with the Workmen’s Compensation Act, 1465-69 GC., and prior thereto had in its employ five or more workmen or operatives required in its business.

That on or about that day, James Tallerico, an employe, while in the course of said employment, was struck by a descending elevator, his injuries resulting in his death, leaving nephews, Anyelo and Joseph Tallercio, aged respectively 12 and 10 years, claiming to be partially dependent upon him for support. Frank Tallerico, as their guardian, had the Attorney General, through 1765-74 GC. bring an action in his official capacity for the Industrial Commission, on behalf of Frank Tal-lerico, Guardian, setting up that he had elected to pursue his employe’s remedy for the injury by making application to the Commission for an adjustment of compensation.

On March 8, 1921, the Commission found that there was due to Frank Tallerico, as said Guardian, $2080. It was further alleged that a copy of the finding, on March 8, 1921, was served by mail on the Hotel Co., and it had failed to pay the same. It therefore asked for a judgment of the amount, plus a penalty of 50 per cent for failure to pay within ten days.

The Hotel Co. answered admitting the injury,' death and guardianship, and setting up that it first began the operation of the Winton Hotel and employer of five operators, July 1, 1920; That subsequent to the filing of the application before the Industrial Commission, and in due time, it had filed therein its proper answer, and that until a long- time after the death of Tallerico, on July 7, it had no knowledge of what amount of premium was chargeable by the Commission against it for the first six months’ period.

The agreed statement of facts filed as a part of the bill of exceptions shows that on the date of the injury the Hotel Co. had not elected to pay compensation, etc., directly, under 1465-69 GC., but that not until about Sept. 4, 1924, had it been a subscriber to the state insurance fund. Also that on Sept. 24 the company received advice from the commission that its first premium for six months was $2046, and that, the insurance would be in full force and effect, and date from the first week day after the payment had been received by the Treasurer of State. This amount was forwarded to the Commission Oct. 16, 1920, and entered to the credit of the company, this period the date of the inquir'ng.

It is the contention of the Hotel Co. that the Commission, at the time it made the award against it of $2080, knew it became an employer July 1, 1920, and had before it the company’s pay roll for the period., and that its payment of $2046 assessment covered the Tal-lerico claim, which should be paid from the state fund.

The Commission gave judgment against the Hotel Co. for $2080 (plus the 50 per cent penalty). The Cuyahoga Appeals affirmed the judgment of the Common Pleas.  