Kellogg v. Industrial Commission

This is an appeal from a judgment in favor of the plaintiffs by the Court of Common Pleas of Hamilton county, on an appeal from the Industrial Commission.

Undoubtedly, when Edgar Kellogg was engaged in changing a heating pipe hung near the ceiling, sixteen feet above the floor, he was in the course of his employment. When the bottom end of the ladder upon which he was working slipped and the upper end in sliding down the wall against which it was leaning reached the top of a door eight feet above the floor and fell from that height to the floor with Kellogg upon it, the accident occurred in the course of the employment. All personal injuries received by him in that fall were likewise in the course of the employment and arose out of the hazards thereof.

The only question of fact is whether his death was caused or accelerated directly by the injuries then received.

The immediate cause of his death was sarcoma — a disease rather than an injury. Therefore, for his dependents to be entitled to compensation on account of his death, it must appear from the evidence that this disease was caused or accelerated by some physical injury accidentally received in the course of his employment — and, as no other such accident is suggested, to be specific, from some physical injury received when he fell on the ladder to the floor. We shall examine the evidence.

The sarcoma first manifested itself in Kellogg in the form of an enlarged testicle about three weeks after he fell. At that time he showed it to his father. He consulted the family physician about it at that time. The testicle kept increasing in size, and, as a result, about seven weeks after his fall, his father sent him to the hospital for examination, where the physician diagnosed his condition as sarcoma of the left testicle. This diagnosis was reached after Kellogg had told the physician that about two months prior to that time he had fractured his patella and received a blow on the testicle in a fall. A few days after the diagnosis, the left testicle was removed, and this was followed by X-ray treatments. Nevertheless, the sarcoma spread to other parts of his body and on February 23, 1935, a little more than six months after his accident, he died from that disease.

The physician expressed the opinion that trauma is one of the causes of sarcoma, and that when so caused it manifests itself between two and six weeks after the blow.

That is substantially all the evidence.

It is objected that what was said by Kellogg to his physician about the blow to his testicle is incompetent, but we think the objection is without merit. It is true that the statement may not be used to prove that the blow occurred in the course of his employment, but it may be used to prove that trauma was the cause of the sarcoma. All statements relating to the physical condition of the patient made to the physician as a predicate of a diagnosis are competent. That he had received an external blow was very material as a basis of diagnosis of his present condition. Cleveland Ry. Co. v. Merk, 124 Ohio St. 596, at 606,180 N.E. 51. The limits of such testimony are clearly illustrated in Hammond v. Industrial Commission, 84 Utah 67, 82,34 P.2d 687:

"Tested by these principles, the declarations and statements, in the main, made by the deceased to Dr. Andersen were admissible. Certainly the statements made by the deceased as to pain and suffering and the character and extent thereof, when first experienced, the extent of exertions exercised by him, the nature and character of the work in such particular as performed by him, etc., all tended to show the extent of the exertion, and were all necessary to enable the physician to properly diagnose the condition of the deceased and to treat him. The statement that the work was done at a particular reservoir or place in City Creek Canyon operated or controlled by the city may be open to objection, and may properly be excluded. That is illustrated by the case of North American Acc. Ins. Co. v. Hill'sAdmx., 182 Ky. 125, 206 S.W. 170. That case was one brought to recover damages on an accident policy restricted to injuries sustained by traveling on a passenger train. The physician consulted by the plaintiff was permitted to testify that the plaintiff stated to him that, while he was boarding a train, it started up suddenly, throwing him violently, and that he fell on a grip carried by him or that the grip fell on him, thus bringing the case directly within the terms of the policy. The court held that, while the physician could testify that the plaintiff stated to him that he sustained an accident wherein he fell on a grip or that the grip fell on him and the part of the body affected, together with the symptoms following, but, to enable the physician to properly treat the plaintiff, it was not essential to mention the place where the accident occurred."

The evidence that he told the physician that he had received a blow comes well within the rule of admissibility, and the physician is a competent witness to the conversation. IndustrialCommission v. Warnke, 131 Ohio St. 140, 2 N.E.2d 248.

Now then, we have direct testimony from witnesses that Kellogg fell in the course of his employment, that he received a blow to his left testicle in a fall about the same time, but no direct testimony that this blow was received in the course of his employment. And we have evidence that the blow caused the sarcoma from which he died.

It will be seen that if any element is lacking, it is the evidence that the blow to the testicle was received in the course of the employment. The contention of the state is that there is a complete failure of proof on this point. And undoubtedly, there is a complete failure of direct evidence, but we believe an inference arises, strong enough to be used by the triers of facts, that a blow to the testicle was received in the one violent occurrence shown by the record — the fall on the ladder. This is proof by circumstantial evidence, which is present in almost all civil suits, but is not expressly referred to so frequently in them as it is in criminal cases. That being the time and place when the blow was received, it was in the course of the employment, from a hazard of the employment. His death was occasioned in the course of his employment, and is compensable in favor of his dependents.

We find no prejudicial error in the record.

For these reasons, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

ROSS, P.J., and HAMILTON, J., concur.

ON APPLICATION for rehearing.