State ex rel. Galloway v. Indust. Com.

PER CURIAM.

This is original in this court in mandamus. Eliza M. Galloway the relator is the wife of the relict of Elisha Galloway, who died of pulmonary tuberculosis. He was employed painting gasoline pumps in a small room and subject to an accumulation of poisonous fumes. He collapsed by reason of the fumes on his. employer’s premises and was carried home where he died three months later. His wife filed a claim for death from occupational disease.

The Industrial Commission refused to allow the claim upon the ground that it did not come within the purview of the statute. An appeal was taken to the Court of Common Pleas where the judgment of the Industrial Commission was sustained. Later it was affirmed by the Court of Appeals. A motion to certify case number 19676 was overruled.

The present action No. 20018 is an action in mandamus, the relator asking that the industrial commission he required to award her damages, urging that the deceased was so reduced in strength and vitality that he was unable to resist the disease.

The Attorney General raised the question by demurrer alleging two grounds, first that the matter had heretofore been disposed of by this court, and second that the facts do not warrant a recovery under the record in this case. The Supreme Court held:

1. Taking up the first ground of demurrer, it appears that after the disposition of cause No. 19676, a motion for a rehearing was filed by the relator on April 16, 1926, and that on May 8, 1926, said motion was denied by this court.

2. An examination of the record discloses that the same questions raised by the petition filed in the instant case were presented in said cause No. 19676, and therein disposed of.

3. It appearing, therefore, that the same subject matter between the same parties, having been heretofore adjudicated, it cannot be again presented by way of an action in mandamus.

4. It follows, therefore, that the demurrer to the petition must be sustained, and the writ of mandamus denied.

(Marshall, CJ., Jones, Matthias, Day & Kin-kade and Robinson, JJ., concur.)

Note — Decided Dec. 31, 1926, 4 Abs. 867; OS. Pend, in No. 19676, 4 Abs. 261.