State ex rel. Mullen v. Industrial Commission , 136 Ohio St. (N.S.) 45 ( 1939 )

By the Court.

It is contended in the brief for the relatrix that the Industrial Commission should have taken the date of the last accident (May 6, 1931) as it was the more probable cause of the injury resulting in “the disease and death” and that she is entitled to receive the most favorable possible interpretation of the question as a matter of law.

Mandamus will lie to compel the exercise of discretion but not to control it unless there be an abuse of discretion. State, ex rel. Baker, v. Hanefeld, Dir., 134 Ohio St., 540, 18 N. E. (2d), 404.

Although it is alleged that the Industrial Commission exercised its discretion in an arbitrary fashion, there are no allegations in the petition sufficient to support the conclusion that the commission abused its discretion in adopting the date of the first “accident” in computing compensation.

The demurrer will be sustained and leave will be given relatrix to plead further.

Demurrer sustained.

Weygandt, C. J., Day, Zimmerman, "Williams, Myers, Matthias and Hart, JJ., concur.