Opinion
No. A-108510.
1948-05-18
McNEES v. CINCINNATI STREET RY. CO.
Hoover, Beall, Whitman & Eichel, of Cincinnati, for plaintiff. C. R. Beirne, of Cincinnati, for defendant.
Proceeding under the Workmen's Compensation Act by Minnie McNees, claimant, for the death of her husband, opposed by the Cincinnati Street Railway Company, employer. From an award of the Industrial Commission denying compensation claimant appeals and moves for judgment in her favor notwithstanding general verdict for employer.
Judgment for claimant.Hoover, Beall, Whitman & Eichel, of Cincinnati, for plaintiff. C. R. Beirne, of Cincinnati, for defendant.
ALFRED MACK, Judge.
This cause is an appeal by the widow and sole dependent of Taylor McNees from a denial by the Industrial Commission of Ohio of her application for compensation from defendant-company by reason of the death of her husband; said denial being upon the ground that her husband's death was not the result of an injury sustained in the course of and arising out of his employment.
The undisputed facts are: Deceased on the night of January 17, 1944 was operating a bus of defendant over a very circuitous route. There was such an extra-ordinarily heavy fog that it was impossible to see more than a few feet; a witness saying it was ‘too foggy to see the hand in front of your face’. A passenger, David A. Tappe, stood on the step and directed the deceased, trying to have him keep the bus away from the curb and any parked automobiles. Tappe stood on the front step alongside of the operator, the door being open. He would direct McNees to move to the right or left. A young boy in the bus contradicted such orders by stating left when Tappe said right and right when Tappe said left. The trolleys did jump from the wires. The operator of another bus tried to assist in placing the trolleys on the wires. McNees tried to replace the trolleys on the wires several times. McNees was breathing ‘awfully hard’ and finally slumpted over the wheel and was taken to a hospital in a police patrol and died.
Mrs. McNees stated that outside of shortness of breath, he complained of dizziness and had a complaint of pain around the heart and down his left arm for over a year preceding his death. On the occasion in question McNees worried about the safety of the operation of the bus and also whether he could keep his time schedule.
The Coroner's verdict was that the immediate cause of death was ‘Coronary Thrombosis'.
Special Instruction No. 1 given before argument was as follows:
‘I charge you as a matter of law that the plaintiff, Minnie McNees, has the burden of proving that the decedent, Taylor McNees, died as a result of an injury sustained in the course of and arising out of his employment.
‘The term ‘Injury’ means a physical damage or harm, accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.
‘Now, I charge you that unless it has been proved by a preponderance of all of the evidence that the decedent, Taylor McNees, died as a result of an injury as I have defined that term, then your verdict should be for the defendant, The Cincinnati Street Railway Company, regardless of what you may consider to have been the cause of his death.’
A general verdict for defendant was returned, the jury answering ‘Yes' to the following particular question of fact: ‘Was the cause of Taylor McNee's death the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944?’
Plaintiff has moved for judgment in her favor notwithstanding the general verdict of the jury upon the ground that the answer to the interrogatory submitted to the jury justifies and requires judgment in favor of the plaintiff.
Originally the term ‘injury’ as used in General Code Section 1465-68 was not defined but by the Act of March 24, 1937, (approved April 9, 1937) 117 O.L. 109, said section was amended by adding thereto the following language: ‘The term ‘injury’ as used in this section and in the workmen's compensation act shall include any injury received in the course of, and arising out of, the injured employee's employment'.
Even before the amendment of 1937 our Court of Appeals in Cincinnati Street Railway Company v. Clock, 50 Ohio App. 139, 197 N.E. 592, 593, said per Judge ross:
‘Injury is defined to be: ‘Hurt or loss caused to or sustained by a person; harm, detriment, damage.’ Shorter Oxford Eng. Dictionary, 1933. * * * The intention of both the people and the Legislature to compensate for hurt or loss caused to or sustained by the employee in the course of his employment is too plain to be ignored.'
In its general charge to the jury the Court said:
‘Was the death, the admitted death of Taylor McNees, the result of an injury arising out of and received in the course of his employment, or was it the result of an injury aggravating or accelerating a previous condition resulting in his death.
‘The burden of proof is on the plaintiff to prove by a preponderance of evidence that the deceased had a condition of his heart which by reason of the unusual work entailed on him on account of the foggy weather injured his heart by closing the artery leading thereto and resulting in his death. If she proves that by a preponderance of evidence she is entitled to a verdict, and if she fails to prove that by a preponderance of evidence your verdict must be for defendant.
‘Now, mere mental strain or worry is not an injury within the meaning of the Workmen's Compensation Law.’
Defendant, in opposing the motion of plaintiff for judgment, relies upon Industrial Commision v. O'Malley, 124 Ohio St. 401, 178 N.E. 842, and Shea v. Youngstown Sheet & Tube Company, 139 Ohio St. 407, 40 N.E.2d 669.
The O'Malley case arose out of an occurrence on August 23, 1928, which was prior to the amendment of 1937, and prior to the Malone case which arose in August, 1938. Malone v. Industrial Commission, 140 Ohio St. 292, 43 N.E.2d 266. In the O'Malley case in the short per curiam opinion it is said at page 403 of 124 Ohio St., at page 843 of 178 N.E.: ‘If O'Malley's death was caused by excitement merely, it was not caused by any physical injury contributing to his death.’
In that case it was claimed that deceased was ‘In an impaired physical condition, in that he was suffering from a rundown condition, high blood pressure and a defective heart; and that on the night of August 23rd, aforesaid, deceased in the course of his employment called the police to have them investigate a possible attempted burglary, and upon the arrival of the police officers he conducted them about the building where he was employed. In doing the things mentioned deceased became highly excited and over-exerted his physical powers and as a result of the nervous shock and over-exertion in taking the police officers about the premises he collapsed.’ He died thereafter.
The Shea case arose out of an occurrence on June 8, 1937, when a gastric ulcer from which Shea was then suffering and had suffered was caused to be ruptured, resulting in the death of Shea on June 10, 1937.
In the short per curiam opinion there is no discussion of the amendment of 1937 but the Court held that there was an absence of ‘proof of a physical or traumatic injury, accidental in origin and cause, which was the result of a sudden happening at a particular time. [139 Ohio St. 407,40 N.E.2d 670].’
In the opinion of this Court the instant case is governed by the decision of the Supreme Court in Malone v. Industrial Commission, 140 Ohio St. 292, 43 N.E.2d 266. In that case the Industrial Commission contended that no change was made in the statute by the amendment of 1937. To this contention the Court replied, at page 299 of 140 Ohio St., at page 270 of 43 N.E.2d: ‘This is contrary to the well established rules of statutory construction.’
The Court also said at page 299 of 140 Ohio St., at page 270 of 43 N.E.2d: ‘This must mean that the term ‘injury’ shall include every physical injury of whatever type which causes loss or damage to a workman, or to his dependents in case of his death, provided it can be shown that such injury otherwise qualifies in characteristics or essential elements as a compensable injury as that term has been heretofore and is now defined by this court.'
At page 300 of 140 Ohio St., at page 270 of 43 N.E.2d the Court said: ‘To restate the rule under the present statute, the term ‘injury’ as used in the Workmen's Compensation Act, comprehends a physical or traumatic damage or harm accidental in its origin and character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place. * * * And this court takes the further position that accidental and traumatic injuries, having the other essential elements of a compensable injury, are compensable whether they are the result of accidental means or the result of the mishap itself proximately causing the harm or damage.'
The following cases apply the principles so announced in the Malone case: Maynard v. B. F. Goodrich Co., 144 Ohio St. 22, 56 N.E.2d 195; Saupe v. Industrial Commission of Ohio, 69 App. 519, 44 N.E.2d 282; Caldwell v. Industrial Commission of Ohio, Com.Pl., 16 Ohio Supp. 134; Russell v. Industrial Commission of Ohio, Ohio Com.Pl., 78 N.E.2d 406.
From all of the foregoing it follows that in the opinion of this Court the death of McNees was the result of an injury arising out of and in the course of his employment and the plaintiff, his widow and sole dependent, is entitled to an award.
Judgment in accordance therewith will therefore be entered notwithstanding the general verdict of the jury herein.