Opinion
No. 23455
Decided June 8, 1932.
Workmen's compensation — Death attributable to or connected with injury received in employment — Question for jury — Impacted fracture of hip and death from acute heart dilation.
Where an employe, sustaining an injury in the course of his employment, afterwards dies, and his dependent widow brings an action against the Industrial Commission for compensation from the state insurance fund, and there is an issue whether or not the death of such employe was in some degree attributable to or connected with such injury, there being evidence in the record tending to support the affirmative of such issue, the matter should be submitted to a jury, under proper instruction.
ERROR to the Court of Appeals of Stark county.
This is an action to reverse the Court of Appeals of Stark county. The facts incident to the matter, as disclosed by the record, are that Milton Schick was employed by the Hoover Company, of Stark county, Ohio, which was a contributor in good standing to the state insurance fund. While in the course of his employment, Schick sustained an injury by being thrown from a moving truck, causing an impacted fracture of his right leg. He was in the hospital for some time and then taken to his home. It is claimed that he never recovered from this injury but continuously felt its effects down to the time of his death.
On the morning of April 14, 1928, he found it necessary to fix a drain, on account of some water which had backed up in the cellar of his house. After moving a few shovels of dirt, he went back into the house, called his wife, and a few minutes afterward died.
Within two years after the date of his injury, Etta N. Schick, widow of the said Milton Schick, made application to the Industrial Commission of Ohio for compensation under the Workmen's Compensation Law (Section 1465-37 et seq., General Code), because of the death of her husband, which compensation was refused by the commission on November 5, 1928, on a ground going to the basis of plaintiff's right, to wit, that the death of said decedent was not the result of an injury received in the course of his employment.
An application for rehearing was granted and the commission again denied the right of the defendant in error, plaintiff below, to receive compensation, on the ground that it had no jurisdiction of the claim and no authority to inquire into the extent of disability or amount of compensation, for the reason that the decedent's death was not due to an injury received in the course of employment.
An appeal was perfected to the common pleas court and a jury impaneled to try the issue. At the close of the testimony in the case the Industrial Commission renewed a motion that it had made for a directed verdict at the end of the plaintiff's case, and again moved the court to arrest the evidence from the jury and instruct the jury to return a verdict for the defendant; upon consideration of which motion the same was sustained and the jury directed to return a verdict in favor of the Industrial Commission.
Error was prosecuted to the Court of Appeals, in which court the finding of the common pleas court was reversed, and the cause remanded, for error in refusing to submit the cause to the jury. Error is now prosecuted to this court to reverse such judgment.
Mr. Gilbert Bettman, attorney general, and Mr. R.R. Zurmehly, for plaintiff in error.
Messrs. Black, McCuskey, Ruff Souers and Mr. Albert B. Arbaugh, for defendant in error.
The sole question presented by this record is whether or not the case should have been submitted to the jury.
It is well established that if a plaintiff has produced "some evidence upon every element essential to create liability, or * * * evidence of a fact upon which a reasonable inference may be predicated to support such element," such case should be submitted to the jury. Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N.E. 634. Many cases might be cited in support of this well-known rule.
Measured by this standard, we think there was at least some evidence in the record from which it could be reasonably inferred that the injury received, by Schick in the course of his employment contributed in some degree to his death.
Schick was sixty-four years of age. Prior to the injury his health was excellent; he never had had any fainting spells before that time; was able to work steadily and continuously, and was able-bodied and apparently healthy. As a result of the impacted fracture of his right hip he was in the hospital for seven weeks, suffering such severe pain that narcotics were administered on several occasions. On two occasions he fainted in the hospital ward as a result of pain. Upon his discharge from the hospital, he was six weeks in bed at his home, then able to get about by the use of crutches, then with a crutch and cane, and finally with a cane. He frequently complained during this period about the pain in his injured leg; he was unable to sleep at night, and had partially lost the use of the leg. At his home he had further fainting spells. Upon one occasion, while at dinner, engaged in eating his meal, he suddenly fainted. Upon another occasion he had to be helped into his house from the yard. It might reasonably be inferred that these fainting spells were manifestations of heart disturbance, reasonably traceable to the experiences he had undergone, occasioned by his injury, as evidenced by the history of his case.
His daughter, Hilda Gerbracht, in response to the question, "How did he get around?" answered: "Very feeble. I saw him two weeks before his death and I saw a terrible change in him."
Dr. Berkley testified:
"Q. What was the cause of this man's death? A. Acute dilation of the heart was my diagnosis."
"Q. I will ask you whether or not in your opinion his previous injury that confined him to the hospital and his home had any bearing or contributed in any way to this man's death? A. In my opinion, it was possibly an indirect cause, contributing cause."
"Q. Can you explain in just what manner you think it contributed to his death? A. To what extent it was a contributing factor I cannot say but my opinion is based on the fact that he had been more or less active. Then he had been confined for possibly two months without any exercise and getting up and moving around, then the work he was doing that morning was a little bit strenuous, causing acute dilation."
Without going into the evidence in detail, we think this case comes within the doctrine announced in the opinion in the case of Jacob Laub Baking Co. v. Middleton, 118 Ohio St. 106, 116, 160 N.E. 632: "If, on the other hand, the proof and inferences are such that fair-minded men could reasonably arrive at different conclusions therefrom, the facts in issue are triable to the jury."
That the matter should have been submitted to the jury was the conclusion of the Court of Appeals, and we are of opinion that such judgment was correct, and it is therefore affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, ALLEN, KINKADE and STEPHENSON, JJ., concur.