Industrial Comm. v. Tripsansky

This cause is here on error from the court of common pleas of Cuyahoga county, wherein, on appeal from the Industrial Commission of Ohio, on the transcript taken before the commission, alone, a judgment was rendered in favor of Elizabeth Tripsansky, under the provisions of Section 1465-68 of the General Code of Ohio, relating to the compensation of employees for the result of injuries received in the course of employment.

The case was tried to court and jury, and it appears from the record that Gaza Tripsansky, decedent, met death on the 7th day of July, 1925, and that the action was brought by defendant in error, Elizabeth Tripsansky, for the benefit of herself as a dependent of her deceased husband, the employee.

Under the allegations of the petition it appears that the decedent on July 7, 1925, was working for the Theodore Gutscher Company of Cleveland, Ohio, as a butcher, and that the company was a contributor to the state industrial insurance fund.

The decedent was standing on a floor which had been used in connection with the company's large meat plant, leaning up against what is known as a "stuffer," which is a machine for the filling of sausage in the skins or links, and it appears that just before the fatality he was moving a barrel toward the "stuffer," and that after it was located in the vicinity of the "stuffer" he was seen to lean against this machinery and almost instantly fall backward to the floor, receiving injuries on the head from which blood flowed, and from which in a very short time thereafter he died.

There is evidence in the record to show that by inference, at least, the floor itself was slippery, as it had just been washed or scoured, as was the usual custom, on account of the accumulation of grease which arose from the nature of the plant and the work in which decedent was engaged.

The question is whether death resulted from an injury which he received in the scope of his employment.

The floor upon which decedent struck his head was a brick floor, and apparently the injury to the head was severe, because he was a very heavy man, standing about six feet high, and bled profusely from the back of his head after he fell. That the floor was wet and greasy seems clear, and for the purpose of avoiding slipping the employees were accustomed to wear rubber boots, and Tripsansky was shod in this manner on the day of his death.

It further appears that it was very hot, and that, after rolling the barrel containing about 50 gallons of water for a distance of about 50 feet to the place where the stuffer was located, upon which he leaned, he immediately succumbed in the manner herein noted.

One witness testified that when the decedent fell on the floor his head was "busted."

From an examination of the record there is no evidence of a reliable or convincing nature that death actually arose from any cause other than the fall as a direct result of the work in which he was engaged.

The coroner who signed the certificate stated that the cause of death was as follows: "Sudden death at work; no medical care, not sick; probably myocarditis, arterioscelerosis; contributory cause, chronic nephritis."

The coroner did not testify before the Industrial Commission, but submitted an affidavit which is self-explanatory, and which practically destroys the reliability of any testimony relating to death resulting from any one of the diseases or complaints which he named. In the affidavit the coroner stated that he made no physical examination, that there was no autopsy over the body, and no inquiry made as to the situation which surrounded decedent at the time of his employment, with respect to the floor, and the work in which he was engaged. It appears further by the affidavit that what the coroner first stated was largely conjecture, and that he was not fully acquainted with all the facts which were necessary to form a reliable opinion and judgment as to the cause of the death.

There is evidence given by another physician at a rehearing before the Industrial Commission, in answer to a hypothetical question, "that due to the fact that there was an injury, it was probable that the man would die from concussion or fracture."

The acting undertaker testified that he first saw the decedent at the morgue, and that he recognized that there was an injury on the back of the head, as the pillow was stained by leakage of blood from the head, which was congealed. He further stated that blood poured from the head during the process of embalming, and that it crimsoned the pillow upon which the decedent lay.

This and other testimony in the case preclude us from coming to the conclusion that the evidence was not sufficient to substantiate the verdict from one view of the case, at least.

The Supreme Court, in the case of Roma v. IndustrialCommission, 97 Ohio St. 247, 119 N.E. 461, laid down the rule relating to the substantial rights of the party in jeopardy, and said that it is the plain duty of the courts to disregard mere technicalities, where, by observing them, doubtful administration of justice would result.

Under the evidence in the case it is clear that immediately prior to the death the decedent was acting in the scope of his employment, and there is reasonable ground for the inference that as a direct result of his employment the injury and death occurred. This is a plain, reasonable, and logical inference, and under the rules of liberality of construction we are bound to follow the verdict of the jury, on the facts, and the judgment of law pronounced thereon by the court.

Under Section 1465-61, General Code, there is a specific provision that every employee who is injured and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, shall be entitled to receive compensation as provided in Section 1465-69, General Code. We think the evidence in this case warrants application of these provisions of the statute.

On the issue as to the weight of the evidence we are bound by the rules of law, laid down on that subject in Painesville UtopiaTheatre Co. v. Lautermilch, 118 Ohio St. 167, 160 N.E. 683;Breese v. State, 12 Ohio St. 146, 80 Am. Dec., 340; Remington v.Harrington, 8 Ohio, 507; Higgins v. Drucker, 22 C.C., 112, 12 C.D., 220.

The judgment of the common pleas court will be affirmed.

Judgment affirmed.

VICKERY and LEVINE, JJ., concur.