
    FLORA v INDUST. COMM.
    Ohio Appeals, 1st Dist, Butler Co.
    No. 778.
    Decided Jan. 4, 1940
    C. W. Elliott, Middletown, for appellee.
    Thomas J. Herbert, Columbus; Benjamin F. Patterson, Dayton, and Paul A. Baden, Hamilton, for appellant.
   OPINION

By ROSS, J.

Appeal from judgment of the Court of Common Pleas of Butler County, Ohio.

The decedent of the plaintiff was engaged in the business of paper hanging and painting. He was employed almost exclusively by Sam Finkleman, who was the owner and operator of some one hundred pieces of real estate, which he rented and sold. Finkleman was not engaged in the painting or paper hanging business. He employed FPra to do this kind of work when his vai.ous properties were in need of such work. Flora charged him a flat price per room. He used his own tools and equipment. He employed and paid a helper.

On the day Flora died he was engaged in papering rooms in one of Finkleman’s buildings. The temperature outside the building was 87 to 91 degrees. It is claimed the temperature in the rooms was higher owing to the fact that the windows were unopened, and the temperature the previous week had been very much higher.

The decedent ceased work about eleven thirty, A. M., stating he felt dizzy. He and his employee walked about a block, when he again complained. He sat down on the sidewalk and shortly thereafter died.

The cause of death was given as heat prostration. It is suggested that the heat aggravated a weakened condition of which the decedent was suffering. This was neither alleged nor proved. The plaintiff in her petition alleges: “the heat regulating mechanism of the body of said Oscar Flora was injured and caused to lose its power to perform its functions. The blood vessels in his brain and body were broken and caused to bleed in many places into the brain, and his entire system was poisoned by toxic substances caused by the high degree of heat to which he was subjected, as aforesaid, and by reason thereof the said Oscar Flora suffered a heat stroke while he was engaged in his work upon the elevated platform aforesaid, by reason whereof, the said Oscar Flora collapsed and died within a few minutes thereafter.”

The evidence in the case is in the opinion of this court insufficient to justify an award. Industrial Commission v Franken, 126 Oh St 299; Goodman v Industrial Commission, 135 Oh St 81; Industrial Commission v McAdow, 126 Oh St 198.

The Court of Common Pleas should have instructed a verdict. Judgment is here rendered for the defendant-appellant.

HAMILTON, PJ., concurs.

MATTHEWS, J., concurs in judgment.  