
    Industrial Commission of Ohio v. Gillard.
    (Decided October 26, 1931.)
    
      Mr. Gilbert Bettmcm, attorney general, Mr. Arthur Krause and Mr. Raymond D. Metmer, for plaintiff in error.
    
      Messrs. Friebolin é Byers, for defendant in error.
   Vickery, J.

This cause comes into this court upon a petition in error to the common pleas court of Cuyahoga county, in which court a verdict was rendered against the plaintiff in error, the Industrial Commission of Ohio, who was defendant below, and in favor of the defendant in error Mary E. Gillard, plaintiff below.

From the record, briefs and arguments of counsel we learn that on the third day of February, 1930, and for a long time prior thereto, Albert E. Gillard had been employed as a driver of a truck and collector of laundry for the E. and H. Laundry Company, and that on this particular day, at 11:30 a. m., he died suddenly while in his automobile. The E. and H. Laundry Company, his employer, having paid into the Industrial Commission fund, a claim was made for compensation by those who were dependent upon the decedent. It is claimed that compensation was refused on the ground that, although decedent died while engaged in his duties as employee of the E. and H. Laundry Company, he died from causes other than an accident, and so the claim was disallowed. An application for a rehearing was made and refused, and an appeal was taken within the proper time to the court of common pleas. At the trial in the court of common pleas the plaintiff below recovered a judgment, which is sought to be reversed here.

The record shows, as already stated, that decedent had been working for the E. and H. Laundry Company, and was working for them at the time of his death, and that his duty was to collect laundry for the company, and that in so doing he used a truck that belonged to the company. It seemed that the battery of the truck had been out of order, and he had been compelled to crank the truck, which caused an unusual exertion. On this day, the morning of his death, it was cold, and he had considerable trouble, as shown by the evidence, to get the truck started, and there was evidence in the record to the effect that his wife and daughter heard him crank the car. The medical testimony shows that he died from acute congestion of the brain, with hemorrhages at the cerebellum, which might have come naturally or have come from an over-strain.

That decedent had a weak heart and was troubled with sclerosis, I suppose is undeniable, but apparently he had worked regularly and had not been ill up to the time of his death.

One of the questions raised is that there was no evidence to go to the jury that the death was caused in any way by accident but that it was a natural death caused from natural causes in no way connected with his employment.

We do not think the record bears that theory out. It surely is the law of this state that, where a person is not physically perfect, and by overstrain or extra work the cause of weakness existing in the system is made operative, or hidden defects are aggravated, by which the death of the insured party is accelerated, the injury is compensable^ (Section 1465-37 et seq., General Code), even though had the person been sound in every particular the strain would not have been sufficient to cause his death or provoke any serious physical injury. We think the law is that, even though a person is not perfect, if overexertion, or extra work that one is not accustomed to, precipitates or brings about the condition which otherwise would not have happened, the injury is compensable, and we find there is evidence in this record which would warrant the jury in coming to a conclusion upon that question in favor of the claimant and against the Industrial Commission.

So far as the first contention is concerned we do not feel called upon to disturb the finding, and, if that were all there was in the case, we should affirm the judgment. But there is a much more serious fault to be found with this record in the trial of the lawsuit, and the majority of the court feel that it is so serious and so contrary to the authorized practice that we cannot let it go by, and that fault, while it ought not to be characterized so harshly as misconduct of counsel, yet in a measure is misconduct of counsel, and was so denominated in the briefs and in the petition in error.

Very able counsel for the claimant in the court below was not quite satisfied with his own argument in the case, and, after the evidence had all been submitted, he did not confine his remarks to argument to the jury, but during the course of his argument spoke about the fairness or the unfairness of the Industrial Commission to claimants in compensation cases, and to illustrate he read to the jury, over the objection of counsel for the Industrial Commission, from one of the opinions written by the late Judge Sullivan of this court. The excerpt from his argument and the manner in which it was given is as follows:

“He (counsel for the Industrial Commission) says the Industrial Commission want to be fair, and I give them credit for wanting to be fair, but the books are full of cases where courts of justice have ruled otherwise than has the Industrial Commission. So we know that they are not always right. This law, under the law, is proposed to be and is intended to be fairly and liberally construed in the interests of the men who create the fund. I can’t state the law on the subject as well as I find it stated in a case decided by the Court of Appeals of Cuyahoga County. They say this—
“Mr. Blaugrund: I object to reading it to the jury.
“The Court: It is discretionary with the court.
“Mr. Blaugrund: Exception.
“Mr. Byers (reading): ‘The remedies provided in the Workmen’s Compensation Act for the benefit of injured parties must be interpreted with the utmost liberality.’ Citing cases decided by the Supreme Court: Roma v. Indus. Com., 97 Ohio St., 247, 119 N. E., 461; Indus. Com. v. Weigandt, 102 Ohio St., 1, 130 N. E., 38.’
“Mr. Blaugrund: For the purpose of the record I want to object to that.
“Mr. Byers: They go on to say — ‘it will be conceded, we think, that the provisions of the Workmen’s Compensation Act are wide and humane, and that they were enacted for the purpose of furnishing the means of support for the widows, children and dependents of employees who might lose their lives while engaged in some labor or work in an honest endeavor to obtain the means of support of those near and dear to them.’ Now, do you think, Mr. Blaugrund, that the Industrial Commission considered this case and decided it in the law as you will find it by the Court of Appeals of this county?”

Then again counsel for plaintiff said farther along in his argument:

“But the only question in this case will be whether you can from the evidence, from the facts which you have before you, reach a conclusion as to whether Albert Grillard died as a result of hemorrhage produced by some unusual exertion which took place while he was employed by the E. and H. Laundry Company. In the book I have the Court says here that the law should be liberally applied. I think in the light of that doctrine of law as laid down by the Court that it is fair to assume that he died as a result of this exertion. ’ ’

Now it will be seen that the vice of this is that the application of the doctrine read to the jury from Judge Sullivan’s opinion was the application of the principle of liberal construction. While this court and other courts have many times held that the law should be liberally construed in favor of the claimant, and this court adheres to that doctrine now, yet the application that the attorney made from these authorities was that the evidence should be liberally construed as well, and if the excerpt from the opinion of Judge Sullivan is read with this in mind, one can see how utterly prejudicial such reading from the law book to the jury would be. We cannot imagine anything more prejudicial than that. The majority of this court think that that was such error as would make it dangerous to sustain this verdict, which otherwise we should undoubtedly sustain — that the practice of reading law to the jury is a wrong practice, and ought not and should not be tolerated.

It is true the court told the jury it should take its law from the court, and the dissenting member of the court feels that the court had cured whatever error there was by his charge. A close examination of the charge will show that the error was not cured. The court of course did say that the jury should take its law from the court and not from the lawyers. The trouble is the application made of the opinion of Judge Sullivan was that the facts should be liberally construed, and that line of argument should have been stopped by the court; and inasmuch as it was objected to, and the objection overruled, the majority of the court think it was erroneous and was not cured by the charge of the court, and for that reason the judgment of the court below will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Weygandt, J., concurs.

Levine, J., dissents.  