Opinion
Decided June 15, 1925.
Workmen's compensation — Appeal to common pleas court — Hearsay evidence received by Industrial Commission, admissible, when — Sections 1465-90 and 1465-91, General Code — Record and transcript to contain all evidence received and considered — Charge to jury as to consideration of hearsay evidence — Question for jury — Cause of death in course of employment — Apoplexy, overheating and over-exertion.
1. In view of Sections 1465-90 and 1465-91, General Code, hearsay evidence received by Industrial Commission upon claim for compensation must be admitted to jury upon appeal to court of common pleas.
2. All evidence received and considered by Industrial Commission in disposing of claim for compensation should appear in record and be shown in transcript.
3. In compensation proceeding, where hearsay testimony is necessarily before jury on appeal from Industrial Commission, jury should be instructed that statements were not made under oath with opportunity of adverse party for cross-examination, and that truth of assertions depends not only upon truth of declarant, but also upon truthfulness, intelligence, hearing, and memory of those reporting it.
4. In compensation proceeding for death from apoplexy, evidence held for jury as to whether cause of death arose from overheating and overexertion in course of employment.
ERROR: Court of Appeals for Lucas county.
Messrs. Fraser, Hiett Wall, for plaintiff in error.
Messrs. Conn Holloway, for defendant in error
This case arose under the Workmen's Compensation Law, and is one to recover damages for the death of Matthew J. McNeely, an employee of the Doehler Die Castings Company. The action was brought by his widow, who was dependent upon him for support, and she claimed that he was injured in the course of his employment, and that as a result of the injury he suffered a stroke of apoplexy, causing his death on September 14, 1922.
The Industrial Commission disallowed the claim, and from this decision the claimant appealed to the court of common pleas, where the case was tried to a jury, resulting in a verdict and judgment in favor of the claimant for $12.80 per week for a period of 390 weeks, and an allowance of $296 for medical services and funeral expenses.
Counsel for plaintiff in error insist that the verdict is manifestly against the weight of the evidence, and, indeed, that there is no evidence to support the verdict.
We have read the evidence in this case with much care. It consists only of the affidavits which were submitted to the Industrial Commission. Some part of the evidence contained in these affidavits is hearsay. While an award under the Workmen's Compensation Law should not be based solely on hearsay evidence, we cannot say that such evidence, when received by the Industrial Commission, must be excluded, in view of the provisions of Section 1465-91, General Code, providing that the Industrial Commission shall not be bound by the usual common-law or statutory rules of evidence, but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties. Section 1465-90, General Code, requires that the Industrial Commission shall certify a transcript of its record to the court of common pleas, and that the court or jury shall "determine the right of the claimant * * * upon the evidence contained in such record and no other evidence."
The Industrial Commission does not sit as an ordinary trial court, and all evidence received and considered by it in arriving at its conclusion in disposing of a claim presented for allowance should appear in the record and be shown in the transcript. Industrial Commission v. Collela, 17 Ohio App. 301. See, also, Industrial Commission v. Piascik, an unreported opinion of the Court of Appeals of the Fourth District, sitting in Cuyahoga county, dated April 26, 1923. In that case the Court of Appeals held that hearsay evidence which had been received by the Industrial Commission must be received by the trial court on appeal. We are thoroughly in accord with the statement of Judge Mauck in the course of the opinion, where he uses the following language:
"Where hearsay testimony is necessarily before the jury and is relied upon for recovery, the trial court ought to call the jury's attention to the fact that the party making the statement was not under oath, that the adverse party had no opportunity to cross-examine him, that the truth of the assertions relied upon depended not only upon the truth of the declarant, but also upon the truthfulness, intelligence, hearing and memory of those undertaking to report it, and that consideration must be given to all these facts in considering testimony of that character."
What, then, are the material facts in this case? McNeely worked for the Doehler Die Castings Company one day only, July 10, 1922. He was a man 68 years of age, and before beginning work on the morning of the 10th he was examined by the company's physician, who found that he was afflicted with arteriosclerosis, but recommended him for light work. Before that time he had been doing light work in a restaurant, but sought employment with the Doehler Die Castings Company for the sake of getting increased compensation. His duties on the day of his employment with the company consisted of keeping vats supplied with metal to be melted. While the glass had been removed from the windows in the room where he was employed, and fans were operated, it appears that the temperature in that room was 20 degrees higher than outdoors, and on the day that he worked the outdoors temperature reached a maximum of 90 degrees Fahrenheit. He stopped work at 4:30 p.m., and when he did so asked his employer if he could have lighter work thereafter, and then walked home a distance of three or four blocks. About that time a severe windstorm arose, but it does not definitely appear that he was out in this storm.
The plaintiff below stated in her affidavit that he became overheated on July 10, 1922, while working for the company, and as a result suffered a paralytic stroke. She states that when he came home from work on that day he was hardly able to walk, and staggered into the house; that she led him to a chair, and he was unable to talk above a whisper. She further says that he told her he had become too hot, and had been overcome with the heat in the room where he was working; that he was gasping for breath, and his eyes had an unnatural stare. Hilda McNeely, a daughter of the decedent, was not at home on July 10, but returned on the following Thursday, and her affidavit states that when she came home she observed that her father was suffering from a paralytic stroke, that his left arm and limb were affected, that he had great difficulty in moving them, and in talking would begin a sentence but oftentimes would be unable to complete it.
He seems to have become better for a short time, and a physician was not employed until about July 22. The affidavit of a physician shows that when he called the patient was suffering from cerebral apoplexy, and he continued to treat him until September 14, when he died. The physician states that cerebral apoplexy was the direct cause of death, but that he could not state definitely the cause of the attack, although overexertion and overheating very frequently caused cerebral apoplexy. The physician was informed, on his first visit, that the decedent had become overheated while at work for the Doehler Die Castings Company on July 10, and that he was ill when he reached home that night. Affidavits introduced on behalf of the Doehler Die Castings Company state, in substance, that when McNeely quit work at 4:30 o'clock on July 10 he stated that the work was a little too hard and that he would like some lighter work, and that he called at the company's plant on July 11 and 12 and sought employment at lighter work. The witness whose affidavits are submitted on behalf of the company further states that when he was at the company's plant they could see nothing wrong with his physical condition, that his speech was normal, and that he showed no signs of suffering from cerebral apoplexy. The company's physician makes affidavit that a cerebral hemorrhage may be caused by excessive work, but that if the work was the inducing cause of the hemorrhage there would be no delay in its appearance, and that such a hemorrhage brings immediate paralysis or speech defects.
The foregoing is, of course, only a summary of the salient points of the evidence. The sole question for the determination of the jury was whether McNeely received the injury in the course of his employment on July 10, 1922, which resulted in the paralytic stroke causing his death. That question was answered by the jury in the affirmative, and we cannot say that the conclusion of the jury is manifestly against the weight of the evidence.
For this reason the judgment must be affirmed.
Judgment affirmed.
WILLIAMS and YOUNG, JJ., concur.