
    McNees, Appellant, v. The Cincinnati Street Ry. Co., Appellee.
    (No. 7290
    Decided April 19, 1951.)
    
      Messrs. Hoover, Beall, Whitman S Eiehel, for appellant.
    
      Mr. C. B. Beirne, for appellee.
    
      
      Reporter’s Note: For concurring opinion by Hurd, J., see post 275.
    
   Skeel, P. J.

This appeal on questions of law comes to this court from a judgment entered for the defendant in the Common Pleas Court of Hamilton County.

The plaintiffs cause of action is founded upon the provisions of the Workmen’s Compensation Act. The plaintiff, as the widow of Taylor McNees, filed a claim for benefits under that act on the ground that her husband came to his death because of injuries suffered in the course of his employment with the defendant. The claim was disallowed when presented to the Industrial Commission of Ohio and upon rehearing, as provided by law, was again disallowed, the Industrial Commission ruling as follows:

“That the claim be disallowed for the reason that proof of record fails to show the decedent died as a result of injuries sustained in the course of and arising out of his employment.”

This order was appealed to the Common Pleas Court of Hamilton County where, upon trial to a jury, a verdict was returned for the defendant. In addition to the general verdict, the jury answered a special interrogatory, which was:

“Was the cause of Taylor McNees’ death, the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944?
“Answer: Yes.”

The plaintiff then filed a motion for judgment non obstante veredicto, which motion was granted.

The court, in granting such motion and entering judgment for the plaintiff, giving her the right to participate in the fund notwithstanding ithe jury’s verdict for the defendant, concluded that that part of its general charge to the jury which stated, “now, mere mental strain or worry is not an injury within the meaning of the workmen’s compensation law,” was in error, and that the jury’s answer to the interrogatory, together with the admitted facts and unchallenged evidence, established that Taylor McNees’ death resulted from a compensable injury under the Workmen’s Compensation Act.

That judgment was affirmed by the Court of Appeals (84 Ohio App., 499, 87 N. E. [2d], 819), but upon appeal to the Supreme Court the judgment was reversed (152 Ohio St., 269, 89 N. E. [2d], 138), and the cause was remanded with instructions to enter judgment for the defendant upon the verdict of the jury, the court holding that:

‘ ‘ 1. The answers of a jury to special interrogatories will not authorize a judgment different from that authorized by a general verdict, where such answers can be reconciled with the general verdict. (Davis v. Turner, 69 Ohio St., 101, and Ohio Fuel Gas Co. v. Ringler, 126 Ohio St., 409, approved and followed.)
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“3. Where, on appeal from disallowance of a claim for death benefits under the Workmen’s Compensation Act, a jury answers, ‘Yes,’ to a special interrogatory reading, ‘Was the cause of Taylor McNees’ death the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of Jan. 17,1944’ (the night of his death), sucb answer does not determine that there was a proximate causal relationship between McNees’ employment and either his death or any compensable injury.
“4. Death benefits under the Workmen’s Compensation Act can be awarded only where the death was the proximate result of a compensable injury.
“5. An injury is not compensable under the Workmen’s Compensation Act unless it is received in the course of and arises out of the employment.
“6. An injury does not arise out of the employment, within the meaning of the Workmen’s Compensation Act, unless there is a proximate causal relationship between the employment and the injury. ’ ’

The case was returned to the Common Pleas Court where judgment for the defendant was entered on the verdict of the jury. The plaintiff filed a motion for new trial, which was overruled. The judgment thus entered is the basis for this appeal.

The evidence of what took place just prior to the death of Taylor McNees is not in dispute. He was employed as a driver of a trolley bus by the defendant and was on duty the night of January 17, 1944. The night was very foggy. As he drove his bus down town the fog was so dense that a passenger stood on the front step of the bus to direct the decedent in avoiding the curb and parked cars. The decedent seemed excited before he started on the trip, which excitement continued as he proceeded down town. About a mile from the end of the line from whence his trip began, the trolley poles were pulled off the wires because the bus was driven too far to the left. The decedent tried to get them back on, without success. The driver of the bus following tried to give assistance when he came upon the scene. After it was found impossible to get the trolley poles back on the wires he suggested pushing the bus driven by decedent back under the trolley wires. As the second driver started to push the bus he moved the first bus only about four feet when the brakes seemed to set. He got out and found that the decedent had collapsed over the steering wheel. He was sick. He was removed to the hospital where he was pronounced dead, the deputy county coroner finding the cause of death as “coronary thrombosis.” The decedent had suffered from a heart condition for about a year prior to January 17, 1944.

The plaintiff, to support her claim, called a doctor who testified that McNees’ death was due to “the tremendous strain that was placed upon this individual’s physical being and his mental being, both, but particularly on the strain of his physical effort.”

Upon cross-examination, this witness admitted that death may result from coronary thrombosis at a time when the decedent is not undertaking physical or mental strain of any kind.

The defendant’s expert medical witness testified that the anxiety and nervousness, more than the physical strain, was the cause of death. He said:

“I can safely say that a majority of coronary conditions result not from physical exertion as much as from mental strain or some other condition which we don’t know * * *. It may come on a person just walking down the street or without any more physical exertion than they normally exert. ’ ’

As indicated above, the jury’s verdict was for the defendant, and after the Supreme Court ordered the court to enter judgment on the verdict, the trial court overruled plaintiff’s motion for a new triál.

The plaintiff presents two grounds for reversal: •The first is that the trial court, both in its general charge and in a special charge given at the request of the defendant, committed error prejudicial to the plaintiff. The second is that the general verdict, in the light of the correct state of the law in the case, was manifestly against the weight of the evidence.

It is clear from a reading of the whole charge and the special charge that the jury must have understood the court to mean that if the decedent came to his death while at work, as a proximate result of a coronary thrombosis, which at the time of death was either activated or brought into existence by mental strain or nervous excitement, that such death would not be the result of a compensable injury received in the course of his employment, even though such mental strain or nervous excitement was produced by unusual conditions under which the decedent was at the time compelled to work.

The question of whether or not the court committed error in entering judgment non obstante veredicto upon the jury’s finding that the death was caused by nervous excitement and mental strain was presented to the Supreme Court by the defendant (152 Ohio St., 269) as disclosed by the defendant’s brief filed in that proceeding. Subdivision II, on page 14 of such brief, presents the question as follows:

“Death resulting from mental strain and excitement of conditions of employment is not compensable under the Workmen’s Compensation Act.”

In support of its claim the defendant cites the following cases: Industrial Commission v. O’Malley, 124 Ohio St., 401, 178 N. E., 842; Shea v. Youngstown Sheet & Tube Co., 139 Ohio St., 407, 40 N. E. (2d), 669; Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430.

The O’Malley case, supra, is clearly not in point, as there the excitement was in no way connected with the decedent’s employment, although this point is not mentioned by the court. The excitement was occasioned because of the police asking to have a gate opened to investigate why a door was open in the building next to the building of decedent’s employer. The decedent stated after opening the door between the properties that he was sick from the excitement of it all and that he had high blood pressure. The post mortem disclosed no evidence of injury and there was no paralysis before death. The court said, at page 403:

“* * * If O’Malley’s death was caused by excitement merely, it was not caused by any physical injury contributing to his death.”

In the Nelson case, supra, the decedent was not confronted with any unusual conditions at the time he died. The court said in the first and third paragraphs of the syllabus:

“1. The sudden death of a workman while engaged in his usual occupation, which death resulted from a pre-existing physical condition, is not of itself evidence that an accidental injury, within the comtemplation of the Workmen’s Compensation Act, caused or accelerated such death.
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“3. Where a workman suddenly dies at his work and his death results from cerebral hemorrhage, and it appears that the workman had been suffering from cerebral thrombosis, such death is not compensable, in the absence of evidence showing that an accidental injury caused or contributed to the death. Under such circumstances, in the trial of an action by the decedent’s dependent to participate in the State Insurance Fund, a trial court is obligated to instruct a verdict and enter a judgment against the plaintiff. ’ ’

The court in its opinion in the Nelson case quotes from Goodman v. Industrial Commission, 135 Ohio St., 81, 19 N. E. (2d), 508, and Cordray v. Industrial Commission, 139 Ohio St., 173, 38 N. E. (2d), 1017. On page 7 the court said:

“In the Goodman case, a 48-year-old baker, while engaged in his usual occupation shortly after he had commenced work, suffered an acute dilation of the heart from which he died on the same day. Since all the eye witnesses testified that Goodman was at his bench, handling dough in the usual way and under the usual conditions, when he collapsed, and that he was not engaged in any extraordinary effort at the time, he did not suffer any compensable injury.
1 ‘ The court there said:
“ ‘Whatever the rule in other jurisdictions may be, the Supreme Court of Ohio, through a long line of decisions, has consistently defined the meanings of the term “injury,” as used in the Constitution and statutes, to be physical or traumatic injuries accidental in their origin and cause; the result of a sudden happening at a particular time.’
“In the Cordray case, the first two paragraphs of the syllabus are as follows:
“ ‘1. In an action by the dependents of a workman against the Industrial Commission in which no evidence is offered by claimants tending to establish that the workmen’s death was the result of a sudden happening at a particular time causing a physical or traumatic injury accidental in origin and cause, it is error for the trial court to overrule a motion by the commission for a directed verdict in its favor.
“ ‘2. Where the plaintiff’s evidence discloses only that a workman while engaged in performing the usual duties for which he was employed, in the usual and regular 'way without any extraordinary éffort, suffered a cerebral hemorrhage, no compensable injury is shown. The occurrence of a cerebral hemorrhage is not of itself proof that it resulted from a compensable injury. ’ ’ ’

These cases do not deal with the question here presented. In the case now before us, there can be no doubt that death resulted from a physical injury to the heart of the decedent, and that at the time of his death, while he was engaged in his work of driving a bus, he was met with unusual conditions different from what were ordinarily encountered, thereby tending to bring on nervous excitement and mental strain which the jury said was a cause of his death.

The Supreme Court in the McNees case, supra, at page 274, said:

“Since the jury’s answer to the special interrogatory finds a causal connection between decedent’s death and the strain and excitement of certain conditions of his employment, it necessarily establishes a causal connection between his employment and the coronary thrombosis. This follows because there is no dispute in the evidence as to the fact that coronary thrombosis was the proximate cause of death. When it refers to ‘the cause of Taylor McNees’ death’ the jury’s answer to the special interrogatory negatives the existence of other causes.”

That case (152 Ohio St., 269), as above indicated, was decided on the question of whether the mental strain and nervous excitement, which the jury found to be the cause of death, was the proximate and not a remote cause of death, inasmuch as there was no controversy about the fact that the decedent came to his death because of a coronary thrombosis, and one of the doctors had testified that in many cases of that kind neither physical nor mental strain was found to be present. That part of the opinion of the Supreme Court last quoted was concurred in by Judge Hart in his dissenting opinion. In other words, the court did not sustain the defendant’s claim that death resulting from a coronary thrombosis brought on or aggravated by mental strain and nervous excitement because of unusual conditions under which the decedent was working at the time of his death could not be a compensable injury.

On the question of mental strain, worry and anxiety, it is stated in 58 American Jurisprudence, 756, Section 255, as follows:

“By the weight of authority, the sudden and unexpected breaking of some portion of the internal structure of the body, as in the case of cerebral hemorrhage, apoplexy, hernia, etc., or the failure of some essential function thereof, as in the case of heart failure, paralysis, and similar afflictions, brought about by the exertions of the employee while engaged in the performance of his duties, or by the conditions of the employment, even without any external happening of an accidental nature, is to be regarded as an accidental injury within the meaning of the terms ‘injury by accident,’ ‘injury proximately-caused by accident,’ ‘personal injury accidentally sustained,’ and similar expressions, as used in compensation statutes, as well as a simple personal injury, although there are holdings to the contrary. And this is true notwithstanding the workman may have been suffering from a preexisting infirmity which constituted a predisposing cause of such disablement. It is said, in this connection, that an internal injury which is sudden, unusual, and unexpected is none the less accidental because its external cause is part of the victim’s ordinary work.”

The cases representing the great weight of authority are set forth in the annotation supporting the above statement. The holdings to the contrary, referred to above, are not in conflict with the situation presented in this case. The cases cited by Zimmerman, J., in his dissenting opinion (152 Ohio St., at page 286) are Hoage v. Royal Indemnity Co., 90 F. (2d), 387, and Von Ness v. Borough of Haledon, 136 N. J. Law, 623, 56 A. (2d), 888, and are also directly in point.

We must therefore conclude that, under the circumstances of this case, the court was in error, and that such error was prejudicial to the rights of the plaintiff, in charging the jury that “mere mental strain or worry is not an injury within the meaning of the workmen’s compensation law.”

The court is unable to agree that the plaintiff’s second claim of error that the judgment is manifestly against the weight of the evidence is well taken, and, therefore, such claim of error is overruled.

For the foregoing reasons, that is, that the court committefl error prejudicial to the plaintiff in its general charge to the jury and in its special charges, the judgment is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Hurd, J., concurs.

Stevens, J., dissents.

Skeel, P. J., and Hurd, J., of the Eighth Appellate District, and Stevens, J., of the Ninth Appellate District, sitting by designation in the First Appellate District.  