
    Gilbert v. Keller, Admr.
    [Cite as Gilbert v. Keller, Admr., 8 Ohio Misc. 31.]
    (No. 124138
    Decided June 30, 1966.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Gallon ds Miller, for plaintiff.
    
      Messrs. Coioden, Pfarrer, Crew & Becker, and Mr. Charles P. Pfarrer, for defendant.
   Baynes, J.

The defendant employer moves the court for a new trial on the verdict for plaintiff’s right to participate in the Workmen’s Compensation Fund, claiming that the court erred in refusing to give defendant’s requested special instruction prior to argument.

Plaintiff’s counsel objected to the giving of the instruction which the court sustained. The instruction was somewhat lengthy including defendant’s theory of the definition of injury, evidence, proximate cause and burden of proof. It included the following language:

“Under the Ohio Workmen’s Compensation Law to entitle a workman to compensation for injury, he must suffer a traumatic injury in the course of and arising out of his employment other than an injury which may occur in the regular course of nature from usual activities of his employment.

“Evidence which shows simply that an injury either may have been the result of an accident arising out of and in the course of employment or may have been suffered in the course of employment in the regular course of nature in the usual activities of employment is not evidence to support a workmen’s compensation claim.

“It is encumbent upon plaintiff, * * *, before he can recover, to show you by a preponderance of the evidence, that the back disability of which he complains was proximately caused by a traumatic injury sustained through his employment as a result of some accidental impact and out of the regular course of nature.” (Emphasis supplied.)

The claimed injury of plaintiff found by the jury occurred on April 19, 1963. Effective November 2, 1959, Section 4123.01 (C), Revised Code, was amended as to definition of injury:

“ ‘Injury’ includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment.” (Italic new language.)

The defendant employer sought by his special instruction to confine the jury’s consideration of injury to traumatic injury. While it is true that this was the holding of Gerich v. Republic Steel (1950), 153 Ohio St. 463, at that time Section 1465-68, Genera] Code, defined injury:

“The term ‘injury’ as used in this section and in the Workmen’s Compensation Act shall include any injury received in the course of, and arising out of, the injured employees’ employment.”

There was a diversity of opinion among the members of the Supreme Court in the decided cases as to whether injury was confined to traumatic injuries or included injuries “accidental in character and result.” See e. g. Dripps v. Industrial Commission (1956), 165 Ohio St. 407, 410. The court had previously defined when an injury is accidental in character and result. See Malone v. Industrial Commission (1942), 140 Ohio St. 292, 301. Note especially paragraphs one and two of the syllabus.

Hearing v. Wylie, Admr. (1962), 173 Ohio St. 221, 223, was a case in which the employer won the battle but lost the war. The case in essence decided that the change in definition yras a substantive and not a procedural one, Therefore the new definition was not retroactive as to an employee’s claim arising on April 1, 1955. Paragraph one of the sylabns states:

“The term ‘injury’ as used in Section 4123.01, Revised Code, as amended effective November 2,1959, includes a physical or traumatic damage or harm accidental in character and result and a physical or traumatic damage or harm produced or caused by accidental means.” (Italics ours.)

Both the above and the statute display the use of the alternative “or.” A compensible injury may be of one class or the other. Webster’s Third International Dictionary contains the following definitions:

“Accidental injury: An injury occurring as the unforeseen and chance result of a voluntary act.”

‘ ‘ Accident: An event or condition occurring by chance from unknown or remote causes.”

“Accidental: Unpredictable. Happening or ensuing without design, intent, or obvious motivation or through inattention or carelessness.”

“Character: Quality. Type.”

In the genera] charge, following the statutory definition, the jury was instructed:

“With respect to the finding of an injury, if such you find, it is not the act of the workman, i. e., the employee, but rather the sudden mishap or event which controls the right to participate. Such event or mishap may occur as the result of and while such employee is performing a customary and intentional act which comes to an unexpected and unintentional result.”

The defendant by his special instruction sought to confine the jury exclusively to a traumatic damage by accidental means. This would have excluded the alternative definition of injury of a physical damage or harm accidental in character and result. As there was no evidence in the record that the claimant suffered traumatic injury, defendant’s charge would have precluded him from being entitled to participate in the fund. Clearly the offered charge was erroneous, as the statute now defines injury.

If it is a fact that the statutory definition is the equivalent of general health and accidental insurance as to injuries received in the course of and arising out of an employment, the Legislature has the power to so. provide. It is appropriate to refer to Judge Bell’s statement in the Hearing Opinion at page 223, “The legislative branch of the government exercised a prerogative delegated to it, and the judiciary is obliged to respect that prerogative.”

Defendant’s memorandum artfully and articulately attempts to bring the Gerich case under the Malone line of cases. It suffices to say that ingenuous argument cannot make unlike positions under differing definitions, equal to each other. Only things equal to the same things are equal to each other.

We therefore find the refusal to give the special instruction of defendant was according to law and not error prejudicial to the defendant. The motion for new trial is not well taken. An entry overruling the motion is accordingly, concurrently, made and entered.

Judgment accordingly.  