
    Eggers, Appellant, v. Industrial Commission of Ohio, Appellee.
    (No. 32663
    Decided March 5, 1952.)
    
      
      Messrs. Ginocchio $ Ginocchio and Mr. Augustus Beall, Jr., for appellant.
    
      Mr. C. William O’Neill, attorney general, Mr. Chalmers P. Wylie and Mr. Leander P. Zwiclc, Jr., for appellee.
   Middleton, J.

The sole effect of the stipulation was to submit the case on motion of the defendant for judgment at the close of plaintiff’s evidence. As in all cases so submitted, all evidence must be given the construction most favorable to the plaintiff. The court does not under such motion determine the weight of the evidence but whether there is any evidence as to which reasonable minds might differ. If the court finds that there is no evidence worthy of being submitted to the jury the motion of the defendant must be sustained. That is what the court found in this instance. Had the court found the existence of some evidence worthy of being submitted to a jury and had then, pursuant to the stipulation, rendered final judgment for the plaintiff a different question would have arisen on appeal, but that did not happen and no such other possible question is before this court.

To be entitled to participate in the workmen’s compensation fund the plaintiff was required to establish that her husband’s death was caused by an injury which occurred in the course of and arose out of his employment. Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St., 232, 116 N. E., 104; Industrial Commission v. Davis, 119 Ohio St., 221, 162 N. E., 796; Grabler Mfg. Co. v. Wrobel, 125 Ohio St., 265, 181 N. E., 97; Industrial Commission v. Nelson, 127 Ohio St., 41, 186 N. E., 735; Ashbrook v. Industrial Commission, 136 Ohio St., 115, 24 N. E. (2d), 33; Stevens v. Industrial Commission, 145 Ohio St., 198, 61 N. E. (2d), 198; Stanfield v. Industrial Commission, 146 Ohio St., 583, 67 N. E. (2d), 446.

The question of controlling importance is what happened at the time the injury was received. Unless and until that question is answered, the medical testimony which comprises a large part of the record is of no importance. The evidence upon this important question is meager indeed. The record contains no statement by Eggers as to the manner in which the injury was sustained. Only one witness saw him fall. That witness was Roy Yissing, a fellow employee who was working at some undisclosed distance from Eggers. The entire pertinent portion of the testimony of Yissing is:

“Q. IVill you tell what you saw happen to Mr. Eggers around eight o’clock on that evening? What were you doing ? A. I was working on a motor at the bench, and I just turned around and looked out toward the position of Mr. Eggers and the way it appeared to me, he had just turned around.

“Q. What did you see? Tell what you saw. A. He just turned around and fell. That’s all I saw.

“Q. Did you go over to him? A. Yes, I did, sir.

“Q. And what did you see when you went over to him, about his condition, if anything? A. Well, he was apparently out, I mean, that’s all I could say.

“Q. Did you see any marks or other on his body or his head or face? A. That I don’t remember.”

It was stipulated that another witness, one William VonOtte, if present to testify, “would say that he had worked for a good time alongside the decedent and that the decedent did not complain about dizziness or feeling bad; further that he recalls an occasion when he was standing near the timeclock to check out, observed some commotion and that he ran down the aisle to see what it was and saw the decedent lying alongside of a housing; further that he saw the decedent placed on a stretcher and taken to the first-aid room.”

There was no other evidence as to the incident.

There was no evidence as to the character of work which he performed, or where he was standing when he fell, with respect to the place where he performed his work, or that he had been subjected to any unusual strain or any unusual condition, or that any incident connected with his employment caused him to fall.

Mrs. Eggers testified that she saw her husband in the hospital immediately after he was injured. She was asked:

“Q. And what did you observe about his condition at the Good Samaritan? A. When I got there he was unconscious. He had a cut on his head.

“Q. What side of his head? A. Near the crown of his head.

“Q. What else did you observe? A. He was covered with blood and the cut was bleeding very much.”

Margaret Hilberg, a neighbor, who accompanied Mrs. Eggers to the hospital, testified as follows:

“Q. And what did you see when you got there? A. Well, they took him in the receiving ward and there was an intern had come in, this is as nearly as I recall, I haven’t gone over this thing, and he had a cut on his head, I would say an inch and a half or two inches and which the intern called to our attention, saying that * * *. It was bleeding, open wound.

“Q. Was he conscious or unconscious? A. He was unconscious. ’ ’

Carl Eggers, a brother, testified that he saw the injured man in the hospital during the evening of May 6, “in bed, unconscious * * * and his head wrapped up and the cut was on his head.” He further testified:

“Q. I will ask you to state whether or not you saw any blood? A. Yes, sir.

“Q. Where? A. I couldn’t recall. It was coming down on the left side of his face.”

Dr John W. O’Brien, who examined Eggers immediately after his admission to the hospital, testified:

“Q. What was his physical condition as you observed it then? A. Mr. Eggers was unconscious, cold, mild shock.

“Q. Wh.at, if anything, did you notice about his body, his condition? A. Evidence of head injury.

“Q. What was that evidence? A. Laceration of lateral side of the scalp.

“ * * *

“Q. What was the extent of the laceration? A. Superficial scalp laceration.

“Q. What do you mean by superficial? A. Did not penetrate through the entire thickness of the scalp.”

There is no other evidence indicating how the injury may have been sustained.

Upon this record it is argued on behalf of plaintiff that when Eggers fell his head struck a “housing.” Counsel for plaintiff refer to the “housing” as a piece of machinery but the record is devoid of any description of it. The claim that Eggers’ head struck the “housing” is predicated upon the assertion of counsel that the cut was on the crown of the head, which, they argue, could not have resulted from striking only the floor. This argument is completely refuted by the undisputed evidence that the cut was on the lateral side of the scalp, near the crown of the head. Furthermore, there is no evidence of marks or blood upon the “housing” and no evidence that his head was near the housing as he lay on the floor. The only evidence on that subject is that of VonOtte, by stipulation, that Eggers was “lying alongside of a housing.”

In Stanfield v. Industrial Commission, supra, participation in the workmen’s compensation fund was denied where the workman, probably from dizziness, fell back and hit his head on the cement floor of the building in which he was employed. In the per curiam opinion of that case the court said:

“In the instant case the floor was in no sense an added risk or hazard incident to the employment. The decedent’s head simply struck the common surface upon which he was walking — an experience that could have occurred to him in any building or on the street irrespective of his employment. The fall resulted from the seizure alone and not from any circumstance of his employment.”

There is no evidence in this case on which a jury could find that Eggers’ head struck the “housing” or anything else when he fell. In the absence of such evidence it must be assumed that his head was cut when it hit the floor.

The facts of this case do not bring it within the scope of Industrial Commission v. Nelson, supra, where the workman was seized with an epileptic fit which caused him to fall and in falling his head struck the corner or steel base of a large spot welding machine at which he was then working. There it could be said that the fall, though due to a cause not related to the employment, would not have carried the consequences it did except for the presence of machinery which was a circumstance incident to his employment. That reasorting cannot be applied to tbe facts of the instant case.

It is well established that the mere fact that injury or death of an employee occurred while he was engaged in the employment is not sufficient to entitle a claimant to an award of compensation. See Industrial Commission v. Davis, supra, and Grabler Mfg. Co. v. Wrobel, supra.

The plaintiff admits the necessity of proving causal connection, that is, that the injury was received in the course of and arose out of the employment. It is urged, however, that the plaintiff is entitled to a presumption, in the absence of evidence to the contrary, that the injury. arose out of and in the course of Eggers’ employment because at the time of the injury he was in his place of employment. In support of that argument unwarranted reliance is placed upon Stevens v. Industrial Commission, supra, and particularly upon one sentence which appears on page 201. In that case an employee was killed during working hours at a place far distant from the place of employment and it was held that, under such circumstances, there is a presumption, in the absence of evidence to the contrary, that his death did not occur in the course of and arise out of his employment. The court did not hold that the converse of the statement would be true.

In the opinion in the Stevens case, supra, Judge Hart was commenting upon the plaintiff’s claim of a right of recovery in reliance upon a rule of presumption adopted in the cases of Sullivan v. Suffolk Peanut Co., 171 Va., 439, 199 S. E., 504, 120 A. L. R., 677, and Norris v. New York Central Rd. Co., 246 N. Y., 307, 158 N. E., 879. He then stated: “This court finds no fault with this rule as applied to the circumstances of those cases.” It is that statement in the opinion on which the plaintiff here relies as adoption by this court of the rule of presumption announced in the two cases there cited and discussed. It is to be noted that the comment above quoted was not carried into the syllabus which is the law of the case.

The facts of the Sullivan case and of the Norris case above referred to were in no wise similar to the facts of the instant case. In each of them the employee was found dead at a place where he had a right to be in the performance of his duties and it was obvious that he had met a violent, accidental death. The circumstances were such as to indicate that the death occurred while the decedent was performing his duties. There was no evidence to the contrary.

The necessity of evidence to support a presumption such as is here urged by the plaintiff is indicated by the following language which appears in the Sullivan case, at page 443:

“The burden of supplying evidence from which the inference can be legitimately drawn that the injury arose out of and in the course of the employment, rests upon the claimant. An award based upon surmise or conjecture will be set aside.”

A comprehensive pertinent annotation appears in 120 A. L. R., 683, in connection with the report of the Sullivan case, supra. It would appear that the weight of authority approves the rule announced and followed in the Sullivan case, but a respectable number of courts refuse to follow that rule. It is interesting to note that in almost every decision in which that rule of presumption is adopted the circumstances were quite similar to those involved in the Sullivan and Norris cases, supra, that is, the employee was found dead at a place which could be considered his place of employment and his death had obviously been violent and accidental. Such facts were considered as persuasive circumstantial evidence.

The basis of the presumption is discussed in Nar done v. Public Service Electric & Gas Co. (1934), 113 N. J. Law, 540, 174 A., 745, as follows:

“Our analysis of the cases on this subject leads us to the conclusion that in each case where liability was imposed on the employer, and sustained, on presumptive or circumstantial evidence there is to be found circumstances which form the basis for a rational inference, tantamount to legal proof of the fact, that the accident resulting in death arose ‘out of’ and ‘in the course of’ the employment.”

In the more recent case of Jochim v. Montrose Chemical Co., 3 N. J., 5, 68 A. (2d), 628, which case was cited in argument herein, the employee was found dead on the concrete floor of a plant at the foot of steps leading to a platform on which vats were located and which steps he was required to ascend in the performance of his duties. Both the floor and the steps were moist and slippery. Compensation was awarded in that case. The opinion contains the following language:

“In civil cases it is sufficient if the circumstantial evidence be such as to afford a fair and reasonable presumption of the facts inferred. Circumstantial or presumptive evidence, as the basis for deductive reasoning in the determination of civil causes, is a mere preponderance of probabilities. The only requirement is that the claimed conclusion from the offered fact must be a probable or more probable hypothesis, with reference to the possibility of other hypotheses.”

In the Norris case, supra, near the end of the opinion, it is said:

‘‘ Under these circumstances, we think the Industrial Board was justified in assuming or inferring that Norris continued in his employment and vas killed by an accident arising out of and in the course of his employment. ’’

The above-quoted statements and similar statements appearing in other decisions indicate some confusion in the use of the terms, “presumption,” and, “inference.”

In paragraph five of the syllabus in the case of Shepherd v. Midland Mutual Life Ins. Co., 152 Ohio St., 6, 87 N. E. (2d), 156, this court defined “presumption” as follows:

“A presumption of law is equivalent to a substantive rule of law to the effect that a particular fact must be assumed when another particular fact or group of facts exist, unless and until the assumed fact is rebutted by substantial evidence.”

In the instant case it can be said with certainty that no facts were proven which would compel a court or jury to determine that Eggers’ death resulted from an injury which arose out of his employment. As distinguished from a “presumption” in the strict sense, an “inference” may be defined as a conclusion which the court or jury may reach from facts or circumstances which are proved but which conclusion is not mandatory. In such case the facts or circumstances so proved are competent evidence to be considered and on which a conclusion may but need not necessarily be reached.

A study of the cases where the so-called rule of “presumption” has been applied convinces us that the courts have applied what could more properly be termed a rule of “inference” than of “presumption.” In the instant case this court is not required to and does not approve or reject either a rule of presumption or a rule of inference on the question of whether Eggers suffered a compensable injury. Such evidence as was presented in this case would not invoke either rule.

The record contains considerable testimony as to the continuing effect of Eggers’ injury and as to the ultimate cause of his death. The doctors disagree as to whether he suffered from a brain tumor of uncertain age and origin or from a brain absGess which could have resulted from a blow on the head.

A careful study of the record convinces this court that the trial judge correctly decided that there was no evidence on which a jury could find that the injury of Eggers arose out of his employment. It is, therefore, unnecessary to consider the medical testimony.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Hart, J.,

concurring. In Stanfield v. Industrial Commission, 146 Ohio St., 583, 67 N. E. (2d), 446, cited in the majority opinion, this court held that one suffering from angina pectoris accompanied by dizzy spells, headaches and hypertension and who fell backward striking his head on a cement floor at his place of employment and died from angina pectoris and coronary thrombosis was not within the workmen’s compensation coverage because his death did not arise out of his employment. Previously, this court held, as follows, in Industrial Commission v. Nelson, 127 Ohio St., 41, 186 N. E., 735:

“A workman, while in the course of his regular and usual employment, was seized with an epileptic fit and fell into or against a spot welding machine, at which he was then working, which fall caused a concussion of the brain resulting in his death * * * the injury was sustained in the course of his employment and arose out of his employment, and is compensable.”

In my view, whether a workman in his fall strikes a bare floor or some object located on or near the floor resulting in his injury or death presents no distinction having a sound basis. The real test is whether the fall occurred as an incident and due to a risk of the employment.

In the instant case, Eggers, while standing on the floor of the workroom where he was employed, turned around and fell to the floor. He was rendered unconscious and his head was cut or lacerated near the crown to the extent of one and one-half to two inches in length. An examination showed signs of cerebral concussion and possible internal hemorrhage. In my opinion, these facts, supported by the evidence, affirmatively show an accidental injury in the course of employment. But there is no evidence that the fall resulted from either a slip, a trip, a misstep, or a faint due to gases or unusual atmospheric conditions, and therefore no evidence that the fall and injury arose out of the employment. There must be some causal connection between the injury and the employment, i. e., the injury must result from some risk inherent in.or incidental to the employment, to justify compensation. Industrial Commission v. Gintert, 128 Ohio St., 129, 190 N. E., 400, 92 A. L. R., 1032; Industrial Commission v. Bankes, 127 Ohio St., 517, 189 N. E., 437; Industrial Commission v. Baker, 127 Ohio St., 345, 188 N. E., 560; Industrial Commission v. Nelson, supra.

It is not sufficient to show merely that the injury occurred during the time of employment. Slanina v. Industrial Commission, 117 Ohio St., 329, 158 N. E., 829; Laudato v. Hunkin-Conkey Construction Co., 135 Ohio St., 127, 19 N. E. (2d), 898; Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266.

As I see it, the doctrine of inference discussed in the majority opinion did not arise in the instant case. Such inference can only arise where there is an unexplained injury or accidental death at or near the place of employment. In the instant case, there was no such unexplained injury or death. The circumstances of the fall and injury were fully covered by testimony of eyewitnesses.

Therefore, I concur in the syllabus and in the judgment.

Taft, J.,

dissenting. In view of the manner in which this cause was tried, the primary question presented for decision by this court is whether there was in the record evidence which would have justified the submission of the cause to a jury. If this cause had been submitted to a jury for consideration and the jury had rendered a verdict for the Industrial Commission, such a verdict would have been fully supported by the evidence in the record. However, it does not follow that the trial court should have directed a verdict for the Industrial Commission, although the decision of the majority represents a holding that it should. Unless this court is to weigh the evidence in Industrial Commission cases, as it does not in other cases, I cannot agree with that decision.

The testimony as to the cut on decedent’s head and his unconscious condition, as outlined in the majority opinion, shows that decedent suffered an injury caused by external and violent means. That having been shown, then, in the absence of evidence that the injury “was brought about through * * * intentional self-infliction of injury, criminal assault by a third person or other nonaccidental means,” there is either a presumption or an inference may be drawn that such injury was caused by accidental means. Shepherd v. Midland Mutual Ins. Co., 152 Ohio St., 6, 87 N. E. (2d), 156 (paragraphs six to nine, inclusive, of the syllabus). There was also substantial testimony in the record tending to prove that, before this injury, decedent had no physical ailments which might have contributed to the fall which caused his injury. Such evidence tends to negative the existence of any “nonaccidental means” as a cause of decedent’s fall and resulting injury.

The question remains whether the evidence in the record will support a reasonable inference that the fall causing decedent’s injuries occurred in the course of decedent’s employment.

Admittedly, decedent fell in the factory where he was employed and during his hours of employment.

Under those circumstances, it seems to me that it would be far more reasonable to infer that the fall occurred while decedent was doing something within the course of his employment than it would be to infer that the fall occurred while decedent was doing something outside the course of his employment. To draw the former inference would be to choose a probability while to draw the latter inference would be to choose a mere possibility.

We have, therefore, a situation where the evidence would justify findings by reasonable minds that decedent’s fall was caused by accidental means and that such fall occurred in the course of his employment. From those findings, it would follow that decedent's injury was an “accidental injury in the course of and arising out of his employment.”

Notwithstanding the effort of the majority opinion to avoid its effect, I believe that a reading of the full statement by Hart, J., at page 201 in Stevens v. Industrial Commission, 145 Ohio St., 198, 61 N. E. (2d), 198, will disclose that that statement fully supports such a conclusion.

Furthermore, that conclusion is fully supported by most of the eases on the question referred to in what the majority opinion describes as the “comprehensive pertinent annotation” at 120 A. L. R., 683. At page 684 in that annotation it is stated:

“It is generally held that when it is shown that an employee was found dead at a place where his duties required him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master’s business, there is a presumption that the accident arose out of and in the course of the employment within the meaning of the compensation acts.”

I believe that conclusion is further supported by the language which the majority opinion quotes from the two New Jersey cases. Certainly, the fact that the decedent fell where and when he did may “form the basis for a rational inference” that he fell in the course of his employment and that conclusion is “a more probable hypothesis, with reference to the possibility of other hypotheses. ’ ’

In support of its conclusion, the majority opinion quotes from Sullivan v. Suffolk Peanut Co., 171 Va., 439, 199 S. E., 504, 120 A. L. R., 677. However, immediately after the language quoted in the majority opinion of this court, the Virginia court qualified that quoted language with the following statement:

“A finding that the injury is compensable, however, may be established by circumstantial evidence and in some cases claims are presumed to be within the meaning of the statute. 28 R. C. L., page 812.

“Where an employee is found dead as the result of an accident at his place of work or nearby, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show, that he was not engaged in his master’s business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident, and that it arose out of and in the course of his employment.

“This principle is well illustrated by the case of Norris v. New York Central Ry. Co., 246 N. Y., 307, 158 N. E., 879.”

In addition to those referred to in the annotation at 120 A. L. R., 683, the following cases are to the same effect: Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo., 677, 29 S. W. (2d), 128; McCoy v. Simpson, 346 Mo., 72, 139 S. W. (2d), 950; Milstead v. Kaylor, 186 Tenn., 642, 212 S. W. (2d), 610; Buff v. Columbia Baking Co., 215 S. C., 41, 53 S. E. (2d), 879.

It should be sufficient to distinguish Stanfield v. Industrial Commission, 146 Ohio St., 583, 67 N. E. (2d), 446, to quote as follows from the per curiam opinion:

“The facts are simple. For a period of approximately six months preceding his death the decedent had received the attention of a physician for a heart difficulty diagnosed as angina pectoris. This was accompanied by dizzy spells, headaches, hypertension and hypertrophy with a slight trace of sugar. On the day of his death decedent worked at his machine until noon when he went into a rest room provided by the company for use by its employees. He was observed to be walking fast in a stooped position and waving his arms in a peculiar manner. Then he straightened up and fell backwards striking his head on the cement floor. He died ten or fifteen minutes later. His physician stated that death was due to angina pectoris and coronary thrombosis with a contributing cause of arteriosclerosis.

6 6# * *

“ * * * The fall resulted from the seizure alone and not from any circumstance of his employment.”

The testimony in the instant case negatives any such nonaccidental cause of decedent’s fall.

At this point, it may be observed that it would be necessary for the claimant to rely upon evidence that decedent’s head struck a “housing” of a machine or upon Industrial Commission v. Nelson, 127 Ohio St., 41, 186 N. E., 735, only if the decedent’s fall had had a nonaccidental cause such as that involved in the Stanfield case.

In neither Industrial Commission v. Davis, 119 Ohio St., 221, 162 N. E., 796, nor Grabler Mfg. Co. v. Wrobel, 125 Ohio St., 265, 181 N. E., 97, cited in the majority opinion, does the report of the case in this court indicate that the decedent there involved had any external marks of injury or violence on his body. Both of those decedents died of heart attacks. Thus, there was no justification for an inference in either case of an accidental injury. On the other hand, the evidence in the instant case is that the decedent fell and that thereafter he had a bleeding cut on his head accompanied by a concussion. Furthermore, there was evidence negativing the existence of any nonaccidental cause of decedent’s injury. As hereinbefore pointed out such evidence justifies the inference of an accidental injury.

The Attorney General has argued that the stipulation, made by his predecessor and under which this case was tried, prevented the trial court from considering any evidence except that offered by the plaintiff; and that the trial court could not be so restricted by stipulation because of the provisions of Section 1465-90, General Code. If that argument were sustained, it might justify a reversal of the judgment but it would not justify a final judgment against the claimant on the record before this court.  