Giordullo v. Herschede Hall Clock Co. , 1925 Ohio Misc. LEXIS 1261 ( 1925 )

HAMILTON, J.

Prank Giordullo, a minor, brought suit through his mother in the Hamilton Common Pleas, claiming damages from personal injuries from the Herschede-Hall Clock Co. The petition charges the unlawful employment at a machine, of a minor 15 years of age, and other acts of negligence.

It was declared by the company that it had complied with the provisions of the Workmen’s Compensation Act and that Giordullo duly filed his application, and pursuant to said application, an award was made by the Industrial Commission. The fellow servant rule was also pleaded in defense. Judgment in the Common Pleas was in favor of the company.

Error was prosecuted by Giordullo and it was contended that the application to the Commission was procured from him by the company through fraud and misrepresentation. The Court of Appeals in affirming the judgment of the court below held:

1. Verdict and judgment must stand or fall on the application to the commission, made by Giordullo > and whether or not the application was procured by fraud and misrepresentation.

2. Under 1465-76 GC., application for award or acceptance of corporation waives right of action, and right to exercise his option to institute proceedings in court.

3. Evidence relating to fraud was submitted to jury under a proper charge of the court, and the evidence adduced fails to establish fraud or misrepresentation.

4. Moreover, amended Sec. 35 of Art. 11, relating to Workmens’ Compensation, removed all rights of action against the employer, who had complied with the compensation act. This amendment took effect Jan. 1, 1924 and Gior-dullo is without authority to maintain an action thereunder. Judgment affirmed.