
    AWARD OF WORKMEN’S COMPENSATION.
    Common Pleas Court of Montgomery County.
    Josephine Mitchell v. Industrial Commission of Ohio.
    Decided, April 4, 1918.
    
      Appeal from Allowance of Claim by Industrial Commission — Question of Sole Dependency — Was Death Due to the Blow Received — Tuberculosis as a Result of an Injury.
    
    1. Where the testimony is to the ^effect that during the lifetime of the decedent he was the sole support of the claimant, who was in a crippled condition and without an estate of her own, the fact that she had children who might have assisted her but did not do so, is not sufficient to defeat her claim.
    2. Death will be held to have resulted from an injury received during the course of employment, where it is shown that the emaciation and debility which resulted from the injury subjected the decedent to and greatly accelerated the disease from which he died.
    
      Charles H. Kwmler and Charles W. Folkerth, for plaintiff.
    
      Harry F. Nolan, Assistant Prosecutor, and Stanley' McCall, Assistant Attorney-General, contra.
   SnEdiker, JY

This oase is on appeal from the Industrial Commission of Ohio denying the claim of the plaintiff; as an alleged sole dependent of the decedent, Oliver B. Mitchell. The plaintiff’s right to compensation 'is’ resisted by. the defendant on two- principal grounds. ' The Industrial Commission contends:

First. That the plaintiff was not solely dependent on Oliver B. Mitchell.

Second. That the death of Oliver B. Mitchell was not caused by an injury sustained in the course of his employment.

It is not necessary for us to here re-reeite the evidence, with all of which counsel for both parties are familiar, and part of which, the testimony of the . physician, has been transcribed and is before the court.

As to the first ground on which the Industrial Commission resists the claim, we are of the opinion-that the testimony was ample to show that this plaintiff, during Mitchell’s life and prior to his injury, was dependent solely upon him for support. She herself is a weakened cripple and unable, by reason, of her lack of an estate and her physical disability to make provision for herself; and the evidence shows that other children of the plaintiff, instead of contributing, were largely a burden, and that the decedent made provision for his family as it existed. We do not understand that the fact that some of the children might have provided for their mother enters into the discussion. The question is: Did they do so, or did Mitchell, the decedent, make the entire provision for the sustenance and maintenance of the plaintiff Í

In so far as this point of contention is concerned, our finding is for the plaintiff.

As to the second claim of the Industrial Commission, that the death of Oliver B. Mitchell was not caused by an injury sustained in the course of his employment, we have some difficulty. There is a.conflict of testimony as between the physicians in the case — we may say the usual conflict which arises from such .testimony coming from opposite sides. But, taken as a whole, it indicates to us that the death of Mitchell not only might have been but was caused by the blow which he received and which constituted his accident.

It appears that after the decedent was injured he fell into an extreme state of weakness and emaciation as the result of such injury; that he was injured and as a result thereof he became emaciated and weak, whereas before he was strong, vigorous and healthy, the evidence is clear; that after becoming so emaciated and weak, symptoms of tuberculosis appeared in him there is no doubt. From tuberculosis he died. The evidence of the physicians is to the effect that tuberculosis is produced by a germ, which finds lodgment in impaired tissue. Whether the germ located itself in Mitchell before or after the injury there is and can be no direct proof; but the fact that he was vigorous before gives us license to entertain the opinion that if such germ did find lodgment before, the field for its growth and operation was not present; the tissues were sound. The proof being that he was healthy before the accident, we may presume that Mitchell continued so to the time when the contrary is shown. That time was after the accident. Wasting and emaciation were its consequences; resistance was gone. Then the disease, the germ, became virulent and active; tuberculosis resulted. In other words, but for the presence of the fertile soil of depreciated tissue, caused by his injury during his employment, the growth of the disease which produced Mitchell’s death would not have been made possible. It was the growth of the disease which killed him. The accident caused the condition that made that growth possible, or accelerated it to an extent that led to death, and his death is chargeable thereto. There is no evidence in the ease other than the accident, the blow, and its resulting conditions, from which it can be claimed that the breaking down of the tissues and of the organs of Mitchell’s body were brought about. If we travel back from the germ to depreciated, tissue and through the emaciated, weakened physical condition to the blow, and find the decedent prior to that blow a vigorous and healthy man, we have reason at least to say that the growth and acceleration of the disease may be charged to the blow.

If we may reasonably say this, what is the law? It is an old principle that the acceleration of death causes death, according to both the civil and criminal law. 201 N. Y. Rep., p. 221.

Or, as stated by Honnold on Workmen’s Compensation, at Section 133:

“Where, but for the accident, the person would not have died at the time at which and in the way in which he did die, the accident must be held to have been the cause of his death.’’

Dr. Peters, in his testimony, in response to a question by Mr. McCall, said:

“Q. Would the condition that Mr. Kumler has described Mitchell as being in break the barrier? A. No, it would not break the barrier. It might cause his death indirectly after the disease of tuberculosis has started; it might turn the tide against him, but would not break the barrier. ’ ’

In a subsequent answer, he said:

“A. But I will stick to the point that debilitation can not start the disease, but it could turn the tide.”

And in another answer:

“A. If he had it, it might have turned the tide-against him.”

Irrespective of the testimony of the other physicians, this evidence, which is relied upon by the Commission for its defense, indicates that the existence of the emaciation and debilitation of Mitchell aggravated and accelerated his disease and hastened his death; and such emaciation and debilitation being fairly established to have resulted from the blow which he received and which produced in him what is known as posterior myelitis, our opinion is that, under the rule already stated, a liability ought to arise in favor of this plaintiff on account thereof, and that she is entitled to compensation under the act. The computation of such compensation, as well as the fixing of attorney’s fees, is left for the final entry.  