Industrial Commission v. King

187 N.E. 253 | Ohio Ct. App. | 1933

Error is prosecuted from a judgment of the common pleas court upon the verdict of a jury finding that the defendant in error, George King, was entitled to participate in the distribution of the Workmen's Compensation Fund. Defendant in error, forty-eight years of age, was a molder by trade, which he had followed for twenty-eight years, twelve years of which service had been with the Buckeye Pump Manufacturing Company, where he was working on the date of the injury complained of. In 1928 Mr. King suffered a right inguinal hernia, for which he continuously wore a truss. He states with reference to his injury, which occurred on September 26, 1930, while engaged in his duties as an employee of the Buckeye Pump Manufacturing Company, as follows:

"Well, I was working along in the usual manner and got deathly sick; * * * I went out to the toilet and examined myself, but couldn't see nothing wrong outside of a slight swelling and a little pain, red. Usually when the rupture went down it went down in there and I could get it out and it didn't go down, and this rupture was new and right under the truss there was swelling, and it was a little red and didn't know what was wrong until I got Dr. Coultrap the next morning.

"Q. Did that happen suddenly? A. All at once. Had a good day's work up."

A strangulated hernia developed, which was most severe and unusual, about which Dr. Coultrap said, in response to a question how it could be caused:

"Just like any other hernia can be caused by a sudden rupture of some of the muscles; instead of the bowel coming down it was the Meckel's diverticulum, which is a portion of the bowel; it is exceedingly rare, and instead of the bowel coming down, the Meckel's diverticulum was down in that sac. There is no difference between strangulation of the bowel and Meckel's diverticulum, but he happened to have a Meckel's diverticulum, and that is the part that was incarcerated down in this hernia sac."

Because of strangulated hernia defendant in error was required to undergo a surgical operation of a most dangerous character.

The plaintiff in error asserts two grounds of error in the brief:

First. That George King did not sustain an injury which arose out of or was caused by his employment.

Second. That the injury sustained by George King was not accidental in nature, as defined under the Workmen's Compensation Act.

It will be observed from the testimony quoted, which is typical of all that is found in the record, that it was not unusual for the rupture to come down as it did on the day when the injury complained of occurred. The coming down on this day was more severe, and defendant in error was unable to reduce the rupture, with the result that strangulation ensued. Although it appears that the defendant in error suddenly became ill, there is no showing whatever that this illness was preceded or accompanied by any sudden or unusual exertion, or different activity, than was commonly followed by him in carrying on the duties incident to his employment. Mr. King says, "I was working along as usual." In other words, there is nothing to show that an accident, within the acceptation of the term under the Workmen's Compensation Law, occurred. Nor does it appear that the same condition may not have resulted had Mr. King been engaged elsewhere. Section 34, Adams Workmen's Compensation Law of Ohio; Industrial Commission v.Roth, 98 Ohio St. 34, 120 N.E. 172, 6 A.L.R., 1463; IndustrialCommission v. Burckard, 112 Ohio St. 372, 147 N.E. 81.

Any doubt about the correctness of our conclusion in this case is dispelled by a decision of the Supreme Court released since the instant case was submitted, of date March 1, 1933, IndustrialCommission v. Franken, 126 Ohio St. 299, 185 N.E. 199. In that case it was testified, and undisputed, that Franken, while lifting by means of a pulley two dies weighing 150 pounds each, upon pulling down upon a fly wheel suddenly felt distress in his chest, "like he was tearing loose." The doctors testified that his death was caused by acute dilation of the heart, which could not have come on by any gradual weakening of the heart. His attack, in conjunction with the pulling down on the fly wheel, was sudden, unexpected, acute, resulting in excruciating pain through the chest, which continued for hours, and from the effects of which he was not at any time free until he died.

The record further disclosed that the condition of Mr. Franken's health up to the time of the occurrence above narrated was good. The doctors said in answer to the hypothetical question that it was but a natural inference that some unusual strain was placed upon his heart at the time that he was compelled to leave his work, and that this resulted in his death. Upon this record the Supreme Court said, through Judge Matthias, that as a matter of law Mr. Franken did not suffer an accidental injury, as contemplated by cases decided in that court. Therefore, upon the authority of the Franken case, supra, we are required to say that as a matter of law the defendant in error did not establish proof of an injury accidentally sustained arising out of and caused by his employment. The judgment of the trial court will therefore be reversed, and final judgment entered for plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

KUNKLE and BARNES, JJ., concur.