#### The State, ex rel. The Hunt & Dorman Mfg. Co., *v.*The Industrial Commission.

*Workmen’s compensation—Assignment of compensation by claimant—Notice by Industrial Commission of*assignment— *Employer’s claim not prejudiced, when.*

1. Where an injured workman makes application for compensation to the Industrial Commission under the Workmen’s Compensation Law, and in good faith executes an assignment to his employer in consideration of his employer advancing him moneys to afford him immediate and necessary relief while such claim is pending before the Commission, such assignment, to the extent of the actual money advanced, is not prohibited by law.

2. When such assignment is duly forwarded to and received by the Industrial Commission four days before allowance of the claim, such receipt by the Industrial Commission will be held to be a notice to the Commission of such assignment, and the payment to the injured workman thereafter will not in any wise prejudice the assignee’s claim under the assignment.

(No. 17824

Decided June 5, 1923.)

In Mandamus.

John Connors was injured on March 6,1920, while working for the Hunt *&*Dorman Manufacturing Company, the relator herein. Application for medical expenses and compensation was filed with the Industrial Commission, and on June 7,1920, the Commission made the following allowance:

(1) Temporary total, 8 1/7 weeks, at $15 per week, $122.14. (This paid the compensation to May 9th.)

(2) Permanent partial disability 30 weeks beginning May 10th, at $12 per week, bi-weekly installments, $360.

*140Shortly thereafter—the exact date does not appear in the record—the Industrial Commission issued two vouchers totaling $194.14, and delivered the same to John Connors.

The claim of the relator is that the issuing and delivering of these vouchers and the resulting payment thereon to the amount of $194.14 was wrongful and illegal, and this suit in mandamus is brought by the relator for the payment by the Industrial Commission to the Hunt & Dorman Manufacturing Company of the sum of $194.14.

*Messrs. Thompson, Eme & Flory*and *Mr. Carl V. Weygandt,*for relator.

*.Mr. C. iC. Crabbe,*attorney general, and *Mr. B. R. Zurmehly,*for defendant.

"Wanámakee, J.

The record clearly shows that John Connors’ claim for compensation for injuries, etc., was allowed by the Commission on June 7,1920. The record also clearly discloses that on June 1,1920, the following paper was executed by John Connors:

“June 1st, 1920.

“To the Industrial Commission of Ohio, Columbus, Ohio: In consideration of $512.00 received to my full satisfaction; I hereby sell, assign and transfer to the Hunt & Dorman Manufacturing Company, all my right and title to compensation under claim No. 742331, risk No. 1360.

“John Connors.” [Signed]

The record further discloses that this paper writing was received at the office of the Industrial Commission on June 3, four days prior to the allowance by the Commission.

*141The writing is what it purports to be, an assignment and transfer of Connors’ right and title to compensation in consideration of $512 advanced to him to relieve his temporary and urgent needs for money in his disabled condition and in contemplation of future allowance to be made by the Commission.

There is no suggestion in the record of any fraud or overreaching on the part of the employer in connection with this transaction, but all the proceedings are, so far as the employer is concerned, characterized by good faith and fair dealing,

The only excuse tendered in behalf of the Commission’s payment of the first two vouchers, aggregating $194.14, to Connors instead of to the relator, is that after the receipt of the assignment on June 3 it was not actually brought to the attention of the Commission, through some delay or carelessness upon the part of some subordinate in checking up, indexing, or filing the assignment in the files pertaining to the John Connors claim; that, in short, such payment of $194.14 was a mistake upon the part of the Commission, but an honest one, and should therefore not be charged to the Commission of the state, but that the Hunt *&*Dorman Manufaeturing Company should suffer the loss. If a private citizen were in the same situation as the Industrial Commission, no such claim, I venture, would be made.

It is exceedingly difficult to defend a policy that would make the state, its agents and commissions, less liable in the discharge of legal duties than the, liability the state requires of its own citizens.

*142Why the Hunt *&*Dorman Manufacturing Company should be called upon to suffer a loss by the delay, failure, and neglect of the Industrial Commission, which it would not be called upon to sustain in the event that the same delay, failure, and neglect had been caused by some private citizen, is difficult to comprehend.

The state immediately recognized the validity of the assignment by remitting to the Hunt & Dorman Manufacturing Company the balance between the total allowed and the $194.14. If a part of the assignment is good, it is all good, and a voucher should be issued by the Industrial Commission in favor of the Hunt & Dorman Manufacturing Company in the amount of $194.14, as prayed for in the petition for mandamus.

*Writ*allowed.

Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur.