#### The State, ex rel. The Trumbull Steel Co., *v.*The Industrial Commission et al.

*‘Workmen's compensation*— Jurisdiction *of industrial commission —Settlement of death claim in probate court*— Section *10772, General Code*— Application *for compensation not waived, when*— Section *1465-76, General Code.*

1. The application of an administrator to the probate court, under favor of Section 10772, General Code, for consent to make settlement for injuries resulting in the death of his decedent while in the course of employment, is not the institution of proceedings in the courts for damage, within the contemplation of Section 1465-76, General Code.

2. The obtaining of such consent by the administrator and the execution of a release of damage by the dependent do not constitute a waiver by the latter of her claim for compensation; nor do they preclude such dependent from thereafter making application therefor.

(No. 17252

Decided December 5, 1922.)

*83In Prohibition.

This is an original action in prohibition brought in this court, wherein the relator seeks to prevent the industrial commission from taking jurisdiction of and determining the application made by one Blanch Dolexander for compensation on account of the death of her husband, Lawrence Dolexander, resulting from injuries sustained in the course of his employment. Blanch Dolexander was the widow and sole dependent of her husband. The issues in the case were presented by petition, answer and reply. A general demurrer to the reply was filed and the cause submitted upon that demurrer. The salient, admitted facts were as follows:

The Trumbull Steel Company was a self-insuring employer and had fully complied with the workmen’s compensation law of the state. On September 24, 1920, Lawrence Dolexander sustained injuries while in the course of his employment, which later resulted in his death. Thereafter an administrator was appointed for the estate of the decedent. Thereupon negotiations were had between the administrator and the Steel Company relative to the settlement of a claim for wrongful death, wherein the company was informed that a petition for damages had been prepared and would be filed unless a settlement was made. A settlement in the sum of $2,000 was agreed upon, whereupon, under favor of Section 10772, G-eneral Code, the administrator filed in the probate court of Trumbull county his application for authority to make settlement with the company in the sum of $2,000, and that court, upon hearing, on October 30, 1920, finding that it would be to the best *84interests of the beneficiary, approved and authorized such settlement “in full satisfaction of all claims and'demands against said Trumbull Steel Company, by reason of the death of said decedent.” The sum of $2,000 was thereupon paid to the administrator and distributed according to law. At the same time the widow, upon such payment, executed a separate'release, discharging the Steel Company from all liability for the death of her husband and from all claims for compensation therefor. Thereafter, in April, 1921, the widow filed her application with the industrial commission asking for an adjustment of compensation due her from the Steel Company under the workmen’s compensation law. In that proceeding, based upon the facts stated, this relator moved that the application be dismissed for the reason that the probate court had approved the settlement and the widow had also made her election by the execution of a release for damages. This motion was filed upon the theory that the commission had no jurisdiction to determine the claim.

By a vote of two to one the commission overruled the steel company’s motion, whereupon this case in prohibition was instituted in this court. These facts were presented by petition, answer and reply. To the reply the respondents filed a general demurrer.

*Messrs. Harrington, DeFord, Huxley & Smith,*for plaintiff.

*Mr. John G. Price,*attorney general, and *Mr. R. R. Zurmehly,*for defendant.

*Mr. Timothy S. Hogan*and *Mr. George B. Ohey, amici curiae.*

*85Jones, J.

This is an action in prohibition. The relator contends that the proceedings in the probate court, including the release executed by the dependent, were, in effect, a waiver of compensation, and that thereby the industrial commission was deprived of jurisdiction to hear and determine her application therefor.

Section 10772, General Code, provides that in actions for wrongful death a personal representative, with the consent of the court appointing him, “may, at any time, before or after the commencement of the suit, settle with the defendant the amount to be paid.” Acting under the authority of this section the personal representative secured the approval of the probate court to make the settlement in question. Did this proceeding, including her subsequent release, bar the dependent from seeking later an adjustment of her compensation at the hands of the commission? Upon the solution of this question depends our judgment in the instant case, and in its solution recourse must be had to the various provisions of the workmen’s compensation law.

The Trumbull Steel Company was a self-insurer. Section 1465-74, General Code, provides that the dependent of an employe may file his application for compensation in accordance with the terms of the act, and that the board may hear and determine such application in like manner as in other claims. This phase of the law, the right of the dependent to make the application, is conceded. But it is claimed by the relator that this right is denied where the personal representative of the deceased has instituted proceedings in the probate court seeking that court’s consent to the settlement of damages under Section *8610772, General Code, and that where he has so done the dependent is deemed to have exercised her option to sne and thereby waived her right to' compensation under Section 1465-76, General Code, under the provisions of which an employer is not liable to suit for injury by his employe or his legal representative in case death results unless the injury has arisen from a wilful act, or from a failure to comply with a lawful requirement for his protection and safety. In sueh event the employe, or his legal representative, may have the option either of claiming compensation under the act or instituting proceedings for damage on account of sueh injury. The section then provides as follows: “Every employe, or his legal representative in case death results, who exercises his option to institute proceedings in court, as provided in this section, waives his right to any award, or direct payment of compensation from his employer under section 22 hereof, as provided in this act.”

Thus far it will be observed that the workmen’s compensation law has given a statutory right to. this dependent to file an application for an award. It has also given her the option either to claim compensation or institute proceedings for damage caused as above stated. Under the last-quoted provision of Section 1465-76, General Code, the employe or his legal representative waives his right to award only if he has exercised his option “to institute proceedings in court, *as provided in this*section.” The proceeding provided in that section clearly embraces a suit authorized to be brought for injury arising from a wilful act or failure to comply with a lawful re*87quirement. The dependent’s right of waiver cannot possibly apply to proceedings in the probate court, as such are not proceedings for “damage on account of such injury.” Therefore, the statute having given the right to file an application for compensation, that right continues to exist until the waiver is exercised by the institution of proceedings in a court of competent jurisdiction for damages, as provided in Section 1465-76, General Code. Had a suit for damages been instituted under the provisions of that section, undoubtedly Section 10772, General Code, would there apply. This is conceded in argument. Since the latter section provides that such settlement may be approved at any time *before*the commencement of the suit it is intimated that this clause has been repealed by implication, but it is only necessary to hold- that the clause is inoperative here. It may still apply to all cases where the employer or industry is not covered by the workmen’s compensation law.

The general policy of the workmen’s compensation law is to provide compensation for injuries, not self-inflicted, sustained in the course of employment. It nullifies the old order and provides a scheme wherein negligence and contributory negligence are no longer factors affecting compensation. The employer is protected from devious attempts to emasculate the law by bringing common-law actions against him, instituted openly or under various guises, while the dependents are protected from unreasonable or unconscionable private- settlement. Obviously, this was the purpose of the law, and to effectuate that purpose the industrial commission has *88adopted rules requiring such settlement to be filed with it for its approval, “in the event injury results in the death, of an employe. ’ ’

In this case there was no waiver of the right to claim compensation, notwithstanding the proceedings in the probate court and the release executed by the dependent. No doubt when the question comes up for consideration before the commission that body in its determination of sole or partial dependence will give full consideration to the amount paid by The Trumbull Steel Company to the administrator.

The demurrer to the reply will be sustained and the writ asked for denied.

*Writ*denied.

Marshall, C. J., Hough, Wanamaker, Robinson and Matthias, JJ., concur.

Clark, J., took no part in the consideration or decision of the case.