
    The Pennsylvania Rd. Co. v. Giovanni.
    (Decided July 31, 1935.)
    
      Messrs. Maxwell & Ramsey, for plaintiff in error.
    
      Messrs. Alcorn <& Alcorn, for defendant in error.
   Ross, P. J.

This is a proceeding in error to reverse a judgment of the Common Pleas Court of Hamilton county, wherein judgment was rendered for the plaintiff, John Giovanni.

The case was tried to the court without a jury.

The suit was brought by Giovanni to recover benefits under a contract with the defendant, The Pennsylvania Railroad Company, which operated The Pennsylvania System Voluntary Relief Department.

The plaintiff was ordered back to work June 1,1931, he, after a slight operation involving the removal of a sac containing water, having been rated as permanently cured of an injury to his knee. He was found to have what is commonly called “Housemaids’ Knee.” The court permitted recovery of full benefits.

Section 45 of the Regulations of the Voluntary Relief Department, by which the plaintiff contracted to be bound, provides as follows:

“Payments on account of disablement by accident will only be made upon the disablement being shown to have resulted solely from accidents occurring to members in the performance of duty in the service and to which they were assigned, or which they were directed to perform by proper authority, or in voluntarily protecting the property of the company in whose employ they are. This shall include accidents occurring to members at points upon the employing company’s property which they necessarily pass when going to and from work, and which do not result from their voluntarily or unnecessarily exposing themselves to danger. There must be exterior or other positive evidence of injury, and satisfactory evidence that it incapacitates the person from performing his duty in the service, or, when of a permanent character, to earn a livelihood in an employment suited to his capacity. Disablement from accident occurring otherwise than as aforesaid, will be classed with sickness. Accident benefits will be paid in case of disablement resulting from vaccination.

“Questions as to the permanent character of disability and the continued payment of benefits on account of the same, shall be determined by the Advisory Committee. ’ ’

The evidence is wholly inconsistent with the judgment of the court. The judgment is explained, however, by the statement of the court as it appears in the record:

“Practically all of the surgeons and physicians that have examined or had anything to do with the injury to the plaintiff’s leg are of the opinion that there has been a complete recovery of the leg. The preponderance of the evidence of the defendant’s surgeons and physicians is, however, that there is some limitation in the flexure use of this leg. They pretty well agree that there is a twenty per cent limitation to normal use of the leg in one direction, that is in bending the leg.

“Now there is another factor that the Court is convinced of and that is that the plaintiff is in good faith in his sense of feeling that his leg is in such a condition that he could perform the work of his old job, that of trucker in the freight depot. It is a laborer’s job, all kinds of freight are to be handled — some of it is not heavy and some of it is very heavy. His boss said that the sheet iron, billets of steel, that were shipped, at times, the weight is from five hundred to two thousand pounds. The testimony is that this billet of steel that he was rolling at the time of his injury, either from the cars to the depot or from the depot to the cars, weighed eleven hundred pounds. And while, as the superintendent says, and I have no doubt it is true, that a great deal depends upon the skill in which they operate the truck and the way they load the truck, nevertheless it is a laborer’s job. It requires a man in good physical strength and condition, and above everybody else tbat knew tbat job and wbat its requirements were at times, tbe plaintiff knew more about what tbat requires than tbe surgeons or anybody tbat testified, unless it might be the sup erintendent.

“Now wbat I started to say is, I don’t believe tbat tbe plaintiff is attempting to deceive tbe Court or to deceive tbe officials of the Relief Department. If tbe surgeons are correct tbat this injury is completely recovered, tbat be has completely recovered of bis injuries, and Dr. Heston says that even if there was some limitation in tbe bending of tbe legs tbat tbat in itself would not affect bis ability to do this work or to do any other kind of work. Of course, it is entirely true that some people can bend their legs more than others, and bis idea is tbat even if there was some limitation in tbe normal use of this leg tbat tbat would not interfere with him doing bis work.

“From tbe plaintiff’s standpoint I think tbat at least be feels be could not do tbat work. Whether that is wholly psychic, whether tbat is just an idea of bis, a mental obsession, nevertheless I feel tbat be has it, and if he has such an obsession of that kind, tbat is one of tbe results of this injury, even though be has bad a complete recovery. Mentally speaking there has not been a complete recovery, unless be is malingering, and I do not feel tbat is tbe case. For eleven years be was a constant, conscientious employee of this company; there was no evidence at all tbat tbe plaintiff has been engaged in any fraud, or tbat be has been a cbiseler in bis work. He stands before tbe Court as an honest and trustworthy man, and it may be entirely true — I have perfect confidence in Dr. Carotbers and Dr. Roof, and all tbe other doctors tbat testified here tbat they are giving their honest opinion tbat this man has no physical defect tbat would prevent him from performing bis old job — I asked Dr. Heston about this psychic situation because we are all familiar with cases of people thinking they are sick and physicians and surgeons examining them and can find no indication of any sickness; it is purely a mental matter and yet it is just as serious and as effective in influencing those people as if there were some sickness.

“Now, nothing of that kind, whether it was mental or physical, in so far as the proof shows, this plaintiff ever had before. The Court is satisfied that there is either a physical — you know there is a joke which they get off on surgeons once in a while where a person dies although the operation was a success. I have looked at corpses too in which they said the operation was a success. I think it was a success in this case and yet I think there is a conscientious feeling on the part of the plaintiff that he could not perform that job and the superintendent of the depot said, in effect, that there were other jobs at the time probably, but the order of return to duty said that he was to take his old job so that he had no authority in the matter except to put him back to his old job.”

We agree with the trial court that the plaintiff has fully recovered from every effect of his injury. He may or may not honestly possess the idea that he cannot work. Whether he does or does not honestly possess such an idea is immaterial. No clause in his contract can be construed to require the payment of relief benefits because the employee is obsessed with the idea of a limitation he does not actually experience.

This being our view of the matter the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Matthews and Hamilton, JJ., concur.  