Industrial Commission v. Bowshier

Vernon Bowshier was an employee of the Columbus Packing Company. On September 7, 1928, while in the employ of that company, and while pulling a truckload of meat, he slipped and was injured. His injury consisted of a left inguinal hernia. It is further claimed that this hernia aggravated a pre-existing condition of otitis media. This resulted, as claimed by plaintiff, in suppurative meningitis, and this last condition caused his death on October 6, 1928. Gladys Bowshier filed a claim before the Industrial Commission, which was disallowed originally and upon rehearing. The case was thereupon appealed to the court of common pleas, and was tried to a jury, resulting in a verdict in favor of the plaintiff. A motion for a new trial was overruled, and judgment was rendered on the verdict. A petition in error has been filed by the Industrial Commission in this court.

The trial court charged:

"Now I charge you that if you find from the facts and circumstances in evidence, and by a preponderance thereof, that the injury sustained by the deceased on the 7th of September, 1928, and characterized as a hernia, aggravated or accelerated, activated the pre-existing disease, or pre-existing physical condition of the decedent, directly or proximately caused such aggravation, acceleration, if such you find, and that the aggravation or acceleration, if any you find, directly and proximately resulted in the death of the decedent, then in such event your verdict should be for the plaintiff."

It is claimed in the petition in error in this court that the record does not disclose a scintilla of legal evidence to establish a causal connection between the alleged injury and the cause of death. Upon this assignment of error, counsel for the plaintiff in error make their principal argument. They claim first that there is no competent evidence that the slipping of the deceased in pulling the load of meat was an accidental injury which caused the hernia. Under the statute (Section 1465-91) in cases before the commission, a more liberal and less technical rule is provided for evidence. This governs the trial on appeal.Industrial Commission v. Link, 122 Ohio St. 181, 190,171 N.E. 99. We are satisfied that, according to the competent testimony of the witnesses of the plaintiff, there was sufficient evidence of an accidental injury to justify the verdict of the jury, and that such injury was a cause of the inguinal hernia thereafter developed. It is also asserted by the complainant that the evidence tended to prove that the hernia was one of the causes of lighting up and aggravating the pre-existing condition of otitis media, and caused the suppurative meningitis from which the deceased died.

Counsel for the Industrial Commission, plaintiff in error, cite the medical testimony which they claim is speculative only; that the strongest inference from such testimony is that the hernia might have resulted in the meningitis, but nowhere state the cause in a stronger light. Complainant offered as a witness Dr. Merrell, whose testimony is more positive than that of the other doctors referred to, and the testimony of Dr. Merrell is supplemented by the testimony of Dr. McCready, which we think is clearly to the effect that the hernia produced immediately by the fall of the deceased was, in the natural progress of the disease, the ultimate cause of the meningitis which was the final cause of death. Besides, the testimony of the doctors was in substance of such form that the jury might have found these consecutive facts therefrom: First, that the slip in hauling the load of meat may have caused the hernia; and, second, that the hernia might have aggravated the pre-existing condition and caused the meningitis which was one of the causes of Bowshier's death. Besides, we are of opinion that the jury, having considered both the expert and the non-expert evidence on the subject of the causation of death, found positively that the accidental injury was proven to be the foundation and direct cause of Bowshier's death. We think this finding of the jury is based upon sufficient evidence, and is not contrary to the manifest weight of the evidence. There is some uncertainty as to the evidence remaining in after the trial court ruled upon the admissibility of evidence during the course of the trial. We think the record shows clearly that a substantial amount of the declarations at the time of the injury, which were offered as a part of the res gestae, was permitted to remain in. This applies to the evidence of nonexpert witnesses as well as expert witnesses. We think the trial court may have been and probably was in error in ruling out some of the evidence surrounding the injury. Those rulings were favorable to the plaintiff in error rather than against it. From the whole case, we think the verdict and judgment are supported by the evidence. We find no prejudicial error, and the judgment must therefore be affirmed.

Judgment affirmed.

HORNBECK and KUNKLE, JJ., concur.