State ex rel. Bredwell v. Hershner

JONES, J.

1. The clause contained in Section 1465-74, General Code (103 O. L. 82, Sec. 27), imposing a 50% penalty on an employer in addition to the statutory award, is unconstitutional and void. On that feature the third proposition of the syllabus in DeWitt v. State, ex rel, 108 Ohio St., 513, is disapproved.

2. An award was made against a non-complying employer by the Industrial Commission in favor of dependents. This was presented to the receiver in custody of the employer’s assets and payment from the assets in his possession refused. Thereafter, intervening in the same court appointing the receiver, the dependents brought suit against both employer and receiver, basing their claim on said award and its disallowance by the receiver. No service was. made upon the employer nor did he enter an appearance therein.

HELD: That, irrespective of Section 1465-74, General Code, the dependents had a right to present their award to the receiver; and if refused allowance they-could, by leave of the court appointing him, procure an adjudication on its validity. Afterwards, on questions of priority, they could be heard upon the distribution of the assets of the employer among the various. Claimants thereto.

(Marshall, CJ., Day, Kinkade, Robinson and Matthias, JJ., concur. Allen, J., concurs in proposition 2 of the syllabus and in the judgment.)