Jasionowski v. Indus. Comm.

This action was brought under the Workmen's Compensation Law (Sections 1465-37 to 1465-108, General Code), by Lizzie Jasionowski, to recover for the death of Wanda Jasionowski, and this is the third time that the action has been in this court.

On the first trial below there was a directed verdict for the Industrial Commission, and the judgment thereon was reversed by this court, the opinion being reported in 22 Ohio App. 112,153 N.E. 247. The second trial resulted in a verdict and judgment for the plaintiff, which was reversed by this court for errors of law occurring at the trial. The third trial resulted in a verdict for the defendant.

It is urged that the trial court committed prejudicial error on the last trial in refusing to give the following request, asked after argument:

"The test of right to award from the insurance fund under the Workmen's Compensation Law, for injury in the course of employment, is not whether there was any fault or neglect on the part of the employer, or his employes, but whether the employment had some causal connection with the injury, either through its activities, its conditions, or its environments.

"The statute was intended to provide a speedy and inexpensive remedy as a substitute for previous unsatisfactory methods, and should be liberally construed in favor of employes."

The request submitted is correct, and was taken from the syllabus in Industrial Commission v. Weigandt, 102 Ohio St. 1,130 N.E. 38, although a mere abstract proposition of law. Being requested after argument, the court was not bound to give it in the precise language asked, and the court did give, in the general charge, and in concrete form, the substance of the request, in the following language:

"You are instructed that if you find from a preponderance of the evidence in this case that the deceased Wanda Jasionowski, shortly prior to her death, had a slight cold sore or abrasion near the right corner of her mouth, being at the time in the employ of the Tiedtke Bros. Company and while so in the employ of said company she was using large sheets of carbon paper used in tabulating accounts, and that after handling such carbon paper she rubbed her face and the abrasion or cold sore with her hands, and that either from some poison on the paper or from bacilli on the paper the sore became infected with streptococci germs or bacilli and entered the blood stream, causing blood poison and death, so finding I charge you that such injury or death would be within the meaning of the Workmen's Compensation Law. And if you further find that plaintiff and the brothers and sisters were partly dependent on the deceased, then plaintiff can recover, and your verdict should be for the plaintiff."

The language quoted, in effect, directed the jury to find for Lizzie Jasionowski, the plaintiff, if it found that Wanda Jasionowski was injured in the course of her employment under the circumstances claimed, and found further that she left persons who were partly dependent on her. Because this charge properly states the law covered by the request, the court committed no prejudicial error in refusing to give the requested instruction.

So far as the claim of the plaintiff to recover benefits is concerned there were two issues, first, Was Wanda Jasionowski injured in the course of her employment? and, second, Did she, at her death, leave those who were dependent or partly dependent on her? The general verdict for the defendant found both those issues in favor of the defendant. So far as the claim for benefits is concerned, the record discloses no error of fact or law.

The plaintiff, however, also sought to recover a verdict and judgment for medical, nurse and hospital services, and medicine and reasonable funeral expenses. By virtue of the provisions of Sections 1465-82 and 1465-89, General Code, a recovery for these items could be had if Wanda was injured in the course of her employment, and that was the only issue involved in the case, so far as such claims are concerned, for the reason that recovery for these items may be had regardless of whether there are dependents, providing only that the deceased was injured in the course of her employment.

Notwithstanding that fact, the trial judge instructed the jury as follows:

"If you fail to find from a preponderance of the evidence that Wanda's death was caused as claimed by the plaintiff, or you fail to find that there were those partly dependent on her earnings, then your verdict should be for the defendant."

That language amounted to a direction to the jury to return a verdict for the defendant unless it found that she left persons partly dependent on her earnings, although it is unnecessary to show dependency in order to entitle the plaintiff to recover for above items. In so charging, the trial judge erred to the prejudice of the plaintiff.

It is insisted, however, that the judgment cannot be reversed by reason of that error because of the authority of Sites v.Haverstick, 23 Ohio St. 626; McAllister v. Hartzell, 60 Ohio St. 69, 53 N.E. 715, and other like cases. Those cases only establish the doctrine that where there is a general verdict for the defendant, and there are two issues, and a finding on either issue entitles the defendant to a judgment in his favor, the judgment will not be reversed for error in the instructions of the court relating exclusively to one of the issues. The cases cited can have no application to the case at bar for the reason that so far as the claim of the plaintiff to recover for medical services and funeral expenses is concerned there was but one issue, to-wit, Was Wanda injured in the course of her employment? In the face of the fact this was the only issue, so far as concerned the right of the plaintiff to recover for the items named, the court instructed the jury to return a verdict for the defendant if they failed to find that there were those partly dependent on her earnings.

Scioto Valley Ry. Power Co. v. Rutter, Admx., 112 Ohio St. 500, 147 N.E. 910, illustrates the fact that the cases cited cannot apply where the error relates to both issues. The instant case is one in which the authorities named cannot apply for the reason that there was but one issue so far as recovery of medical services and funeral expenses is concerned. Under the instructions of the court, the jury were not permitted to return a verdict in favor of the plaintiff for medical services and funeral expenses until she had established that Wanda was injured in the course of her employment and also that Wanda left persons dependent or partly dependent on her, whereas, under the law, plaintiff was entitled to recover for those items upon establishing the first of those two facts.

We find no other reversible error in the record.

Because the record is free from error both of fact and law on the right of the plaintiff to recover for benefits, that portion of the judgment will be affirmed. By reason of the error relating to the recovery for medical services, funeral expenses, etc., that portion of the judgment will be reversed and the cause remanded for a new trial as to such items.

Judgment affirmed in part, reversed in part and remanded.

WILLIAMS and LLOYD, JJ., concur.