
    Common Pleas Court of Montgomery County.
    Bessie McCain v. The Industrial Commission of Ohio.
    Decided April 17, 1930.
    
      Leonidas E. Speer, for plaintiff.
    
      Paul Wortman, prosecuting attorney, and Fred Hershey, assistant prosecuting attorney, for defendant.
   Snediker, J.

This case is before the court on a rehearing. On April 10, 1929, the facts then before us were considered and the same decision was rendered as by the Industrial Commission of Ohio. Since then, the testimony of several physicians has been taken with respect to whether or not the death of the plaintiff’s decedent might have been incurred, and was in fact incurred’ in the course of his employment. To reiterate some of the facts surrounding the case, Walter McCain was employed by the Kramer Bros. Foundry Company, of this city, in the capacity of a laborer. His work consisted in part of moving about with his own strength iron or steel flasks and other heavy material as it became necessary to do so from one part of the factory to another. On the day in question he was so employed. At a very short time after he had been carrying some of these heavy flasks, he was heard to groan, and was found dead. The testimony showed that he was a man in normal health. By normal health we do not mean that he was entirely free from any complaint whatever, but that he enjoyed such good health as a man of 48 years might be expected to enjoy. There is no evidence in the case that just prior to the day of his death he was suffering from any serious, definite illness. He had been comparatively free from any organic indisposition. The testimony shows that at his age there is a possibility of him being subject to arteriosclerosis, or hardening of the arteries. This occurs in different persons at different times and is a progressive affliction, and it might have been true that arteriosclerosis had set in. When he was found, the coroner was called in, and his diagnosis was acute cardiac dilitation. There is evidence in the case to show that a certain diagnosis cannot be made without an autopsy. No such autopsy was had. There is no testimony that McCain had been affected previously with any heart disease or especially with cardiac dilitation. The physicians who were called for the purpose of testifying as experts on behalf of the plaintiff stated that acute cardiac dilitation might occur from the lifting or carrying of. heavy loads, and particularly this might be true if certain attitudes of the body were called for during such exercise. In other words, the heart responds as the occasion requires. Any violent or extraordinary exercise of the muscles leads to activity of the heart, which is compelled to or does throw sufficient blood through the system to assist in carrying out the operation. As one of the doctors testified, the same result occurs if anybody violently exerts himself in running after a street car.

There are several reasons why the Industrial Commission thinks the plaintiff ought not to recover. One of these urged by counsel for the Commission is that there is no testimony that just at the time when McCain was attacked he was lifting any heavy load or making any great exertion. We do not understand that it is necessary for a plaintiff in a case like this to show an instantaneous connection between employment and death. A case which was passed upon by Judge Houck of the Delaware county Court of Appeals is an illustration of how far we are entitled to carry the relief. We refer to the case of the Industrial Commission v. Dunham 28 O. L. R., p. 624. In that case decedent had been at work in carrying about some heavy chairs from one floor to another. The weight, the exercise resulting therefrom, and the operation- of climbing the stairway brought on an aneurism of the aorta. Judge Houck in that case decided that: “Notwithstanding the difficulty of proving that death was the result of the employment in which the decedent was engaged, the plaintiff was entitled to compensation.” In his opinion he states what we have already quoted as the facts in this case: “There is evidence in the record which discloses clearly that heavy lifting or violent exercise of the kind and nature in which the decedent was engaged at the time of the claimed rupture would bring about or result in the condition of the decedent which it is claimed was the proximate cause of his death.”

We are all acquainted with the uncertainty of diagnoses and of the hesitation which a physician feels to express an opinion as to cause or a condition, but we can gather enough from the testimony of the physicians in this case to warrant us in finding that, since Walter McCain prior to the day on which he died had been in what may properly be called a normal condition [and we say this because any affliction which he had in the nature of arteriosclerosis was at his age normal], his death did result from his employment.

We do not regard seriously the point made by counsel for the Industrial Commission that this claim ought to be rejected because the plaintiff’s decedent was or might have been subject to arteriosclerosis. The Ohio law of compensation for injury or death resulting from occupational diseases was not intended solely for the benefit of robust, healthy persons who might incur disease or who might be killed in the course of their employment. The law takes the employe as it finds him, and if he, with an impaired physical condition, receives such injury from his employment that his death may be traced thereto, then he, or those who have been dependent upon him are entitled to participate in the compensation. It is what he receives, and not what he has, that determines the right to recover.

A principle of law which should be considered in such cases was discussed in the case of Mitchell v. Industrial Commission 20 Ohio Nisi Prius at p. 569 in this language:

“It is an old principle that the acceleration of death causes death, according to both the civil and criminal law. 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.’ ”

The same rule can be applied in a case like the one we are now discussing. If Walter McCain would not have died at the time at which and in the way in which he did die, but for the nature of his employment, then his death may properly be charged to that employment, and especially where no other .inducing competent cause is proven to have intervened.

We find, therefore, that this plaintiff is entitled to such compensation as the General Code provides. The amount will be determined after conference with counsel for the respective parties.  