(dissenting). I dissent from the conclusion of the Court finding that the judgment of the Court of Common Pleas of Butler County should be affirmed. I concur in the decision to certify, in that the majority opinion is contrary to Furnis v industrial Commission, 71 Oh Ap 146.
It seems to be conclusively held that an appeal to the Court of Common Pleas from a finding of the Industrial Commission involves law fixing the rights of claimant in existence at the time the original application of claimant was filed. State ex Longano v Industrial Commission, 135 Oh St 165; Sergi v Industrial Commission, 136 Oh St 546. The same rule is followed in claims for unemployment compensation. State ex The Cleveland Ry. Co. v Atkinson, Admr., etc., 138 Oh St 157.
If such were not the case, the decision in the case of State ex Moore v Industrial Commission, 141 Oh St 241, would be largely dispositive of the issues here presented.
While I have concurred in the certification of this case to the Supreme Court, because the majority opinion is in conflict with the Furnis case, supra; I agree with the reasoning and conclusion of Judge Guernsey in that case.
In State ex Waller v Industrial Commission of Ohio, 142 Oh St 193, the denial of jurisdiction was upon exactly the same basis as that in the instant case — to-wit: “that his disability was not the result of the injury sustained.”
The Commission had previously found that the claimant was permanently and totally disabled.. However, this became an issue in the trial court as all other elements sustaining his right to an award and the issue of permanent and total disability were issues'to be presented to the jury.
Had the .evidence presented on rehearing and examined *617by the jury in the trial court shown the claimant was not an employee, or that the injury was not incurred in the course of his employment and by reason thereof, or that the employer was not within the act, the jury must have decided against the claimant.
As to the charge of the court: While I do not approve it, fof the reasons given in the majority opinion, I do not consider that error appears affirmatively therein to the prejudice of the appellant. The charge could have been amplified, but no request appears on the part of appellant for a more extended charge on the points now assigned as error.
It is my conclusion that the judgment should be affirmed.