
    Dripps, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 34611
    Decided July 5, 1956.)
    
      
      Messrs. Traxler & Beil, Mr. R. Brooke Alloway and Mr. James F. DeLeone, for appellee.
    
      Mr. C. William O’Neill, attorney general, Mr. James L. Young and Mr. Van Blanchard, for appellant.
   Matthias, J.

The sole question presented on this appeal is whether claimant sustained an injury within the contemplation of the Workmen’s Compensation Act.

The question as to the meaning of the term, “injury,” has been before this court many times, and it has been consistently held that to be compensable an injury must be accidental in origin and result.

In Toth v. Standard Oil Co., 160 Ohio St., 1, 113 N. E. (2d), 81, we held:

“The term, ‘injury,’ as used in the Ohio Workmen’s Compensation Act, comprehends a physical or traumatic damage or harm, accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.”

It is clear that under Ohio law a workman is not entitled to workmen’s compensation for every sudden disability with which he is seized while engaged in the performance of his duties for his employer. Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430. For an employee to receive compensation for an injury arising at a time when he was performing his duties as an employee, he must show that such injury is physical or traumatic in character, that it arose suddenly and was not intentionally self-inflicted, and that it resulted by external means from some specific event or mishap occurring suddenly and unexpectedly and not in the usual course of events. Since it is not the act of the workman but rather the sudden mishap or event which controls the right to compensation, such event or mishap may well occur as a result of and while such employee is performing a customary and intentional act which comes to an unexpected and unintended result. However, the mere exertion of a greater effort than is ordinarily used or being subjected to some extraordinary strain is not in and of itself sufficient to give rise to a right to compensation; to warrant compensation the need for such strain or effort must be shown to have resulted from some sudden, unusual and unexpected occurrence or some sudden specific mishap or event. • In other words, for an injury to be compensable under the Workmen’s Compensation Act, it must be physical or traumatic in character and a result of external and accidental means occurring at a time when the employee was in the course of his employment.

We come now to a consideration of the case presently before us. The record shows that, for a period of some nine weeks before the date of the injury, the claimant had been forced to use two spools to move the boom. At the time of the injury, claimant was performing the same work and in the same -manner as he had performed it daily for many weeks. Nothing unusual occurred, there was no sudden mishap. While performing his usual duties, claimant felt this sudden tingling in his arm which is stipulated to be “a strain in the left arm which has been determined to be a traumatic disturbance of the brachial plexis and further described as a sensory neuritis and impaired sensation involving the median nerve.” The mere sudden appearance of a disability during the course of his employment is insufficient to entitle a workman to participate in the State Insurance Fund; such injury must have been preceded by some sudden mishap, external in character, resulting in the disability. No such mishap was present in this case.

The judgment of the Court of Appeals is, therefore, reversed, and the judgment of the Court of Common Pleas is affirmed.

Judgment reversed.

Weygandt, C. J., Stewart, Bell and Taft, JJ., concur.

Hart, J., concurs in paragraph two of the syllabus and in the judgment but dissents from paragraph one of the syllabus.

Zimmerman, J., dissents.

Taet, J.,

concurring. Most of the previous decisions of and pronouncements of law by this court support paragraph one of the syllabus of the instant case. See also Artis v. Goodyear Tire & Rubber Co., post, 412. However, there is at least one decision of this court which cannot be reconciled with paragraph one of the syllabus in the instant case. See Maynard v. B. F. Goodrich Co., 144 Ohio St., 22, 56 N. E. (2d), 195, and paragraph two of the syllabus therein. (See also Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. [2d], 266, and paragraphs three and four of the syllabus therein. But see paragraphs one and two of that syllabus.) It has been suggested that there is no statutory or constitutional basis for a conclusion that, in order to be an “injury” within the meaning of the Workmen’s Compensation Act, “a physical or traumatic damage or harm” must be “accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place’’’ (or, in other words, the result of accidental means), instead of being merely “accidental in character and result.” See Johnson v. Industrial Commission, 164 Ohio St., 297, 306, 130 N. E. (2d), 807; Renkel v. Industrial Commission, 109 Ohio St., 152, 156, 141 N. E., 834. However, there is statutory language which tends to support the pronouncement of law being made in paragraph one of the syllabus of the instant case. See for example Sections 4123.28 (“accident resulting in * * * injury”) and 4123.22 (“accidents leading to injuries for which awards * * * made”), Revised Code. As I view it, to the extent that they are inconsistent therewith Malone v. Industrial Commission, supra, and Maynard v. B. F. Goodrich Co., supra, are being overruled by the decision and paragraph one of the syllabus of the instant case. I believe therefore that some such statement should be made in paragraph one of the syllabus herein to avoid confusing those courts which are required to follow and those lawyers who rely upon the decisions and pronouncements of law made by this court.

Bell, J., concurs in the foregoing concurring opinion.

Hart, J.

I concur in paragraph two of the syllabus and in the judgment but dissent from paragraph one of the syllabus. My dissent is based upon the fact that in defining compensable injury paragraph one of the syllabus makes accidental means a prerequisite to the compensability of accidental injury. As I conceive the law to be, as expressed by the holdings of this court since the amendment of Section 1465-68, General Code (117 Ohio Laws, 109), now Section 4123.01, Revised Code, making the term, “injury,” used in the statute to mean “any injury received in the course of and arising out of the injured employee’s employment, ’ ’ accidental means is no longer a prerequisite of a compensable accidental injury. See discussion in Malone v. Industrial Commission, 140 Ohio St., 292, at pages 296 to 300, 43 N. E. (2d), 266; and McNees v. Cincinnati St. Ry. Co., 80 N. E. (2d), 498, affirmed, 84 Ohio App., 499, 87 N. E. (2d), 819, reversed on other grounds, 152 Ohio St., 269, 89 N. E. (2d), 138, reversed on appeal after retrial, 90 Ohio App., 223, 275, 101 N. E. (2d), 1.

Zimmerman, J.,

dissenting. In addition to what Judge Hart has said in his opinion, I would like to add the following observations :

It seems to me that the majority opinion in its plain implications, at least, represents a return to this court’s position prior to the amendment of old Section 1465-68, General Code. That statute as amended, presently Section 4123.01, Revised Code, defines “injury” as including licmy injury received in the course of, and arising out of, the injured employee’s employment.”

Surely there was a purpose in adopting this amendment and to my mind that purpose was to broaden the term, “injury,” to embrace injuries accidental in character and result as well as those produced or caused by accidental means.  