Opinion
No. 34343
Decided November 23, 1955.
Evidence — Expert witness — Hypothetical question — Facts upon which based — Opinion limited — Must not invade province of jury — Workmen's compensation — Injury in course of employment.
APPEAL from the Court of Appeals for Lucas County.
The plaintiff filed with the Industrial Commission an application for adjustment of claim for compensation for the death of his wife, alleged to have resulted from an injury sustained in the course of and arising out of her employment. After disallowance of the claim by the Industrial Commission on rehearing, plaintiff appealed to the Court of Common Pleas.
Plaintiff alleges in his amended petition that while at her employment his wife sustained injuries to her head, shoulders and left arm, proximately causing or accelerating her death. The defendant self-insurer, decedent's employer, denies that decedent suffered the injuries alleged or that such injuries caused or accelerated her death, thus presenting the issue whether decedent suffered an injury in the course of and arising out of her employment, proximately causing or accelerating her death.
The record does not disclose that there were any eyewitnesses to the accident, but an employee who worked near decedent testified that, after the accident, decedent was holding her head and said that a rod on an overhead conveyor became unbolted and hit her on the head. Plaintiff testified that when his wife returned home on the night of the incident she was not "feeling good," and that he observed a little lump on her head and a redness on the back of her head, shoulders and left arm, and a redness and slight swelling of the left wrist.
The record contains no direct evidence of injury to the wrist. The attending physician testified that he did not have any history of injury to the left wrist, and the hospital records contain no history of such an injury.
A long and involved hypothetical question, propounded to a physician called to give expert testimony, recited incidents of decedent's employment and conditions after the accident, claimed to be the etiology of her physical condition and resultant death. The cause of death was stated to be the metastisizing of malignancy throughout the organs of the body. The witness was then asked whether, in his opinion, assuming all the suggested facts to be true, there was a causal relationship between the injury and the cause or causes of death. The answer was in the affirmative. The physician's reason for his opinion was predicated chiefly on an injury to the left wrist. This is disclosed by his testimony when he stated, "in summary * * * an individual * * * with a pre-existing cancer who sustained general injuries and a specific injury to the left wrist which did not heal, which resulted in an area of weakened resistance * * * in all probability attracted and caused the pre-existing cancer to spread to the wrist and all other parts of the body with resultant death."
The Court of Common Pleas overruled defendant's motion for a directed verdict, made at the conclusion of the evidence, and rendered judgment for plaintiff on a verdict of the jury finding plaintiff entitled to compensation.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Samuel Z. Kaplan, for appellee.
Mr. William J. Higley and Mr. John E. English, for appellant.
Hypothetical questions directed to a witness must be based on facts supported by or adduced from the evidence. An expert witness may not express an opinion on matters which are within the province of a jury and as to which it is capable of making a competent finding. In the instant case, a fact of injury to the wrist occurring in the course of and arising out of the employment should have been a premise presented to the expert witness, which, if found by the jury to be true, could then have formed the basis for the acceptance of the expert opinion as to causation. Failure to do so rendered the opinion defective. Burens v. Industrial Commission, 162 Ohio St. 549, 124 N.E.2d 724.
The judgment of the Court of Appeals affirming that of the Court of Common Pleas in favor of the plaintiff is reversed and final judgment is rendered for defendant.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMMERMAN, STEWART, BELL and TAFT, JJ., concur.