Opinion
No. 3481
Decided November 16, 1951.
Workmen's compensation — Injury sustained in course and scope of employment — Causal connection — Evidence sufficient to warrant submission to jury — Motion for directed verdict — Proceeding after accepting adverse ruling thereon — Waiver of error.
1. A defendant waives his right to rely on error in overruling his motion for a directed verdict made at the close of plaintiff's evidence, where he accepts such ruling and proceeds with his defense.
2. Where, in an action to recover workmen's compensation for an eye injury allegedly sustained by an employee while acting within the course and scope of his employment, it is disclosed that the employee told his wife, his foreman and a nurse that he did not remember anything entering his eye, and on trial of the cause testified that the eye injury resulted from "dirt that must have gotten into my eye," and the only other evidence of causal connection between the injury and the employment consisted of vague testimony by the employee's fellow workmen that he got something in his eye while at work, and testimony by a physician, based upon a hypothetical question in which it was erroneously stated as a fact that while in the course of his employment particles of dirt entered the employee's eye and that a scarred cornea was secondary to such injury, there is evidence sufficient to warrant submission of the case to the jury.
APPEAL: Court of Appeals for Mahoning county.
Messrs. Traxler Beil, for appellee.
Messrs. Manchester, Bennett, Powers Ullman, for appellant.
Defendant, a steel corporation amenable to the Workmen's Compensation Act of Ohio and a self-insurer thereunder, appeals on questions of law from a judgment of the Court of Common Pleas entered upon a jury verdict returned for plaintiff in his action filed therein to review his claim of right to participate in the workmen's compensation fund of Ohio, which was denied him upon rehearing by such commission.
Plaintiff filed his claim to recover compensation for injuries sustained while in defendant's employ, and, allegedly, while acting within the course and scope of his employment with it as a millwright in March 1947.
On March 18, 1947, when plaintiff returned from work at his place of employment with defendant steel corporation, his wife advised him that his right eye was red, to which he responded that he did not remember anything entering it.
About 7:00 p. m. on March 21, 1947, plaintiff applied for first aid to his right eye at defendant's emergency hospital, complained that it was sore, and related to the nurse in charge and also to his foreman, the conversation had with his wife.
In response to arrangements made by defendant's nurse-employee, plaintiff consulted an eye specialist who treated him for five weeks for "purulent conjunctivitis" of the right eye "due to outside infection." The cornea of plaintiff's right eye was scarred, and such conjunctivitis subsequently spread to the left eye. Plaintiff gave the specialist no history of the presence of a foreign body in either eye.
Plaintiff's witnesses, fellow employees, testified:
"Q. You didn't see Peterchak get anything in his eye, did you? A. The answer is: When?
"Q. When? On March 21st, 1947. A. 1947, before, I no see him with bandage.
"Q. With a bandage, did you say? A. Before that I didn't see him have a bandage. After that I see that he had something in his eye, and that's all. A. And before I no see him.
"Q. Did you say that Peterchak told you that he got something in his eye? A. Second time I go move guide down in the hole, Peterchak no say nothing to me, just come out.
"Q. He didn't say anything to you while you were in the hole? A. In the hole —
"Q. Now, did he say anything — A. Just hide down in the hole.
"Q. Did he say anything to you before he went to the doctor? A. Just come up out; then down in the hole, come up out; he swear, `* * * I got something in the eye.'
"* * *
"A. Something fell in his eye. I sent him to the hospital and he came back to work in two days with the bandage on his eye. Then he told me that his wife said there was something wrong with his eye."
In answer to a hypothetical question propounded by plaintiff's counsel, his physician-witness testified:
"Assuming that the story is correct of Mr. Peterchak having gotten foreign bodies into his right eye on the first occasion, and also assuming that it was necessary for him to continue treatment for as long a period as it was necessary, as he stated, obviously there was more than just a simple foreign body, which usually heals in a short period of time, that is, a superficial corneal body. So assuming then that all the foregoing statements were correct, then I can see where Mr. Peterchak, that the scars on his cornea are secondary to the injury that he received at that time.
"I don't know if I made myself clear, in my previous statement, but in my experience with corneal foreign body, an uncomplicated foreign body that's removed from the cornea and an antiseptic instilled, the usual course is uneventful. However, if the corneal foreign body carried germs in with it, then it leads to what is known as corneal ulcer, and corneal ulcer that is protracted and prolonged in its course usually leads to scarring of the — scarring of more or less severity, depending on the size of the ulcer and the virulence of the organism. I don't know whether that's clear."
Subsequent to the treatment given plaintiff by such physician, another eye specialist of his own choosing, who did not testify for him, treated him for many months.
By brief, defendant's counsel states:
"It is the contention of the defendant that there is no evidence of an injury to plaintiff's right eye within the meaning of injury as defined in the Workmen's Compensation Act, General Code Section 1465-68, or as that term has been interpreted by the Supreme Court in the Malone case, 140 Ohio St. 292. It is defendant's position that the difficulty with plaintiff's eye was due entirely to outside infection and not to injury."
Plaintiff's testimony, offered by himself, of the presence at any time of a foreign body in his right eye was that weeping of that eye was the result of the "dirt that must have gotten into my eye."
Plaintiff's medical expert witness, Bloomberg, testified to a causal connection between the injury to plaintiff's right eye and his employment, which was based upon a hypothetical question in which it was erroneously stated as a fact that on March 11, 1947, while in the course of his employment a particle, or particles, of dirt entered his right eye. That witness testified, "* * * so assuming then that all of the foregoing statements were correct, then I can see where Mr. Peterchak, that the scars on his cornea are secondary to the injury that he received at that time." Further, that witness testified that the injury to plaintiff's eye could have been caused by injury or by infection, and that he could not tell whether the condition of plaintiff's right eye resulted from injury or infection.
Further, defendant contends that the evidence submitted in the trial court is not sufficient "to support a claim for injury under the Workmen's Compensation Act," and supports that statement by citation of the case of Gerich v. Republic Steel Corp., 153 Ohio St. 463, 92 N.E.2d 393, in which the judgment of this court was reversed.
Next, defendant contends: "A mere possibility that there is causal connection between an incident and a diseased condition of the eye is not sufficient under Ohio law. There must be at least a probability. Drakulich v. Industrial Commission, 137 Ohio St. 82; Industrial Commission v. Lathrop, 52 Ohio App. 55; and Hof v. Industrial Commission, 62 Ohio App. 241."
It is observed that neither plaintiff nor some of his fellow workmen handle the English language with ease, which makes a reading of the record rather difficult at times.
Defendant waived its right to rely on the claimed error that the trial judge erred to its prejudice in overruling its motion for a verdict to be directed in its favor when it accepted the ruling of the trial court and proceeded with its defense and introduced evidence in its own behalf. Halkias v. Wilkoff Co., 141 Ohio St. 139, 47 N.E.2d 199.
We cannot conclude that "the court erred in overruling defendant's motion for a directed verdict in its favor, and at the close of all of the evidence submitted in the case," as in our opinion there is evidence warranting submission of the case to the jury. But we conclude that "the verdict of the jury is contrary to law and against the manifest weight of the evidence."
The judgment of the Court of Common Pleas is reversed and a new trial granted, and the cause is remanded to the Common Pleas Court for further proceedings according to law.
Judgment reversed.
NICHOLS, P. J., and GRIFFITH, J., concur.