
    Cavanaugh, Appellee, v. Industrial Commission of Ohio, Appellant.
    (Decided November 20, 1939.)
    
      Mr. Joseph I. Williams, for appellee.
    
      Mr. Edward A. Schott, for appellant.
   Boss, J.

This case is in this court on appeal on questions of law from the Court of Common Pleas of Hamilton county.

The question presented by the record is whether the claim of the plaintiff is compensable.

Plaintiff’s decedent was employed by a builders’ supply company, and did general work in connection with the business of that company. He was thirty-three years of age. The cause of death was stated to be “heat prostration induced by heavy work during heated term.” - The decedent, at about eleven o’clock a. m., on July 23, 1934, was engaged in loading sacks of cement, weighing nearly 100 pounds, upon a truck. He carried the sacks from the inside of the store to the truck, which was located outside the building.

The temperature on the day in question, as shown by the meteorological report, varied from a maximum of 104 degrees to a minimum of 78 degrees. The humidity at noon was 36.

After completing the loading of the truck, the decedent'went inside the store, and while standing beside his brother’s desk, collapsed. He died on August 5, 1934.

There is little, if any, dispute concerning the facts in the case. The controversy between the parties centers upon the legal questions involved.

It is the contention of the Industrial Commission that the decedent was not exposed to any greater strain than was applicable to the general public, and that under the rule pronounced by the Supreme Court in Slanina v. Industrial Commission, 117 Ohio St., 329, 158 N. E., 829, the claimant is not entitled to participate in the State Insurance Fund. The syllabus of that case is:

“In case an employee, in the discharge of the duties of his employment, is injured as a result of the unexpected violence of the forces of nature, to wit, ‘a destructive tornado,’ where his duties do not expose him to a special or peculiar danger from the elements which caused the injury, greater than other persons in the community, such employee is not entitled to compensation under the Workmen’'s Compensation Act. (Fassig v. State, ex rel., 95 Ohio St., 232; Industrial Commission v. Weigandt, 102 Ohio St., 1, approved and followed.)”

The position, of the Industrial Commission in this ease we consider as untenable. In the Slanina case that portion of the public having occasion to use the public streets was exposed to the force of the wind. But suppose the employee in that case had been occupied in work upon the top of a church spire, elevated high above the ground. It could not then be said that the employee and the public were upon a parity as to danger from the force of the wind.

So, in the instant case the members of the public, as a whole, were not engaged in strenuous work, carrying heavy loads, raising the normal temperatures of their bodies to the danger point.

The position of the Industrial Commission ignores the fact that it was neither the mere exertion in raising the sacks upon the trucks nor the heat alone which caused the decedent’s death, but on the contrary, was a combination of the two, which combination constituted a special and peculiar situation not common to the public as a whole.

Where such a combination of circumstances exists, causing death of an employee, the mere fact that the element of the combination may be experienced by the general public is insufficient to justify a legal conclusion that the employee or his representative is not entitled to share in the State Insurance Fund.

Such a situation presents a question of fact for a jury, and its conclusion, when sustained by substantial evidence, will not be disturbed by the court.

The judgment will be affirmed.

Judgment affirmed.

Hamilton, P. J., and Matthews, J., concur.  