
    McNees, Appellee, v. The Cincinnati Street Ry. Co., Appellant.
    
      (No. 31707
    Decided December 7, 1949.)
    
      
      Mr. C. R. Beirne, for appellant.
    
      Messrs. Hoover, Beall, Whitman & Eichel, for apappellee.
   Taft, J.

In her petition, plaintiff alleged that on January 17, 1944, her husband was an employee of the defendant and engaged in operating one of its trolley busses, and that he sustained an injury in the course of that employment “when he was subjected to unusual physical and nervous strain through the necessity of driving his bus through an extraordinarily heavy fog. ” ' It was further alleged that this ‘ ‘ unusual strain” produced a coronary thrombosis and resulted in his almost immediate death.

By its answer, defendant admitted decedent’s death on the date alleged but denied that such death “was in any way connected with the decedent’s employment” and “that the decedent sustained any injury * * * within the meaning of the Workmen’s Compensation Act.”

The special interrogatory, which the jury answered in the affirmative, reads as follows:

“Was the cause of Taylor McNees’ death, the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944.”

Answers of a jury to special interrogatories will not authorize a judgment different from that authorized by the general verdict, if such answers can be reconciled with the general verdict. Davis v. Turner, 69 Ohio St., 101, 68 N. E., 819; Ohio Fuel Gas Co. v. Ringler, 126 Ohio St., 409, 185 N. E., 553.

It should be observed that plaintiff’s amended motion for judgment notwithstanding the verdict is based upon the ground that the evidence and the answer of the jury to the interrogatory require such judgment. Apparently, plaintiff’s purpose was to rely upon Section 11420-18, General Code, providing that “when a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly” and, also, on Section 11601, General Code (116 Ohio Laws, 413), authorizing the court to render judgment notwithstanding the verdict, where, not only upon the statements in the pleadings but also “upon the evidence received upon the trial” a party is entitled by law to judgment in his favor, “whether or not motion to direct a verdict may have been made or overruled. ’ ’

Ordinarily, in order to sustain a motion for judgment notwithstanding a general verdict, the evidence received upon the trial and the facts established by admissions in the pleadings and in the record, must be such that the court would have been required, upon a proper motion therefor, to direct a verdict for the party seeking such judgment. Even if, on such a motion for judgment, a court may also consider the answer of a jury to an interrogatory as establishing facts found by such answer, such motion must be overruled if the evidence, received upon the trial, and the facts, established by admissions in the pleadings and in the record and by answers of the jury to interrogatories, do not, as a matter of law, require a finding for the party making such a motion on some issue, which should have been found in his favor in order to justify a general verdict for him. In passing upon such a motion, neither the trial court, the Court of Appeals nor this court may weigh the evidence. Section 11601, General Code.

By the words of Section 35, Article II of the Constitution, the General Assembly is authorized to provide compensation to workmen and their dependents for “death, injuries or occupational disease, occasioned in the course of # # * employment.” The instant case does not involve provisions made with respect to occupational disease. With respect to death and injuries, the General Assembly provided that compensation is to be awarded only if the employee was “injured” or “killed in the course of employment.” Section 1465-68, General Code. However, the only provision for payment of compensation for death is for those instances in which á compensable injury caused death. Section 1465-82, General Code.

Plaintiff must therefore contend that decedent was “injured # * * in the course of employment,” and that such injury was the cause of his death.

Nothing in the jury’s answer to the interrogatory indicates that the “mental strain and excitement of the driving conditions” represented any injury to Mc-.Nees. It might be argued that the term “any injury” might be interpreted to include the word “strain.” However, such an argument with respect to the word “excitement” would appear to be clearly unreasonable.

If we assume that a mental strain could be an injury, then we have that injury and something which could not reasonably be interpreted as an injury, i. e., the excitement, as the cause of death.

When we turn to the evidence, we find no dispute as to the fact that decedent’s death was caused by coronary thrombosis. If a coronary thrombosis, caused as this one was, could be included within the term “any injury,” which we do not decide, the question would still remain whether it would be here included within the term “injury” as defined in the last paragraph of Section 1465-68, General Code.

That section provides that “the term ‘injury’ * * * shall include any injury received in the course of, and arising out of the injured employee’s employment.” (Emphasis ours.)

Since the jury’s answer to the special interrogatory finds a causal connection between decedent’s death and the strain and excitement of certain conditions of his employment, it necessarily establishes a causal connection between his employment and the coronary thrombosis. This follows because there is no dispute in the evidence as to the fact that coronary thrombosis was the proximate cause of death. When it refers to “the cause of Taylor McNees’ death,” the jury’s answer to the special interrogatory negatives the existence of other causes.

However, the answer to the interrogatory does not establish that there was any proximate causal relationship between decedent’s employment and either the mental strain and excitement or the coronary thrombosis or his death.

This raises the question whether an injury must be a proximate result of the employment in order to come within the definition of injury set forth in the last paragraph of Section 1465-68, General Code.

Although there is no statutory provision requiring a proximate causal relationship between a compensable injury and a death for which compensation is sought, this court has frequently held that it is necessary for a death claimant to establish that such an injury was the proximate cause of the death. Aiken v. Industrial Commission, 143 Ohio St., 113, 53 N. E. (2d), 1018; Gwaltney, a Minor, v. General Motors Corp., 137 Ohio St., 354, 30 N. E. (2d), 342; Weaver v. Industrial Commission, 125 Ohio St., 465, 181 N. E., 894. See, also, Maynard v. B. F. Goodrich Co., 144 Ohio St., 22, at page 31, 56 N. E. (2d), 195; Bowling v. Industrial Commission, 145 Ohio St., 23, 60 N. E. (2d), 479.

However, in speaking about whether an injury was received “in the course of, and arising out of the injured employee’s employment,” this court has usually mentioned only the necessity of finding a causal connection between the employment and the injury. Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St., 693, at page 697, 76 N. E. (2d), 892; Stanfield v. Industrial Commission, 146 Ohio St., 583, at page 585, 67 N. E. (2d), 446; Parrott v. Industrial Commission, 145 Ohio St., 66, at page 69, 60 N. E. (2d), 660; Maynard v. B. F. Goodrich Co., supra; Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266; Ashbrook v. Industrial Commission, 136 Ohio St., 115, 24 N. E. (2d), 33; Highway Oil Co. v. State, ex rel. Bricker, Atty. Genl., 130 Ohio St., 175, 198 N. E., 276; 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. Bateman, 126 Ohio St., 279, 283, 185 N. E., 50; Grabler Mfg. Co., v. Wrobel, 125 Ohio St., 265, 181 N. E., 97; Industrial Commission v. Carden, 129 Ohio St., 344, 195 N. E., 551; Industrial Commission v. Gintert, 128 Ohio St., 129, 132, 190 N. E., 400, 92 A. L. R., 1032; Industrial Commission v. Lewis, 125 Ohio St., 296, 297, 181 N. E., 136; Gregory v. Industrial Commission, 129 Ohio St., 365, 195 N. E., 699; Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38; Delassandro v. Industrial Commission, 110 Ohio St., 506, 144 N. E., 138; Laudato v. Hunkin-Conkey Construction Co., 135 Ohio St., 127, 132, 19 N. E. (2d), 898; Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St., 232, 116 N. E., 104.

However, in none of those cases did this court determine that a proximate causal relationship between the employment and the injury was not necessary. Furthermore, consideration of the facts of many of those cases and what this court said in deciding them indicate that this court has, in effect, often regarded such a proximate causal relationship as necessary. See, for example, Industrial Commission v. Bankes, supra; Highway Oil Co. v. State, ex rel. Bricker, Atty. Genl., supra; Ashbrook v. Industrial Commission, supra; Stanfield v. Industrial Commission, supra; Sebek v. Cleveland Graphite Bronze Co., supra; Industrial Commission v. Baker, supra; Industrial Commission v. Bateman, supra. See, also, Walborn v. General Fireproofing Co., 147 Ohio St., 507, 72 N. E. (2d), 95; Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430.

Furthermore, majority opinions of this court have quoted, in support of their conclusions, the statement of Chief Justice Rugg in McNicol's case, 215 Mass., 497, 102 N. E., 697, L. R. A. 1916A, 306, that “an injury which cannot fairly be traced to the employment as a contributing proximate cause” is excluded from being one which “arises out of” the employment. See Highway Oil Co. v. State, ex rel. Bricker, Atty. Genl., supra, at 178; Ashbrook v. Industrial Commission, supra, at 119; and Walborn v. General Fireproofing Co., supra, at 509.

This court has also indicated that an injury to be compensable must be “ caused * * * in substantial part by the hazard of the employment” (Indusrtial Commission v. Hampton, 123 Ohio St., 500, paragraph 3 of the syllabus, 176 N. E., 74); and three of the present members of this court concurred in a dissenting opinion stating that an injury will not be compensable when it ' ' cannot fairly be traced to the employment as a substantial contributing cause.” Outland v. Industrial Commission, 136 Ohio St., 488, 494, 26 N. E. (2d), 760.

In the unanimous decision in Merz v. Industrial Commission, 134 Ohio St., 36, 15 N. E. (2d), 632, the syllabus states that compensation cannot be awarded for death where there is “no direct causal connection betioeen the employment and the death.” (Emphasis ours.) The terms “direct cause” and “proximate cause” are regarded as equivalents by this court. Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94; Bartson v. Craig, 121 Ohio St., 371, paragraph 3 of the syllabus, 169 N. E., 291. It was also stated on page 296 of the opinion by Hart, J., in Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266, that injuries must “directly result from the activities of the employment” in order to be compensable. (Emphasis ours.)

As stated by Bevis, J., on page 339, in Gedeon, Admr,. v. East Ohio Gas Co., 128 Ohio St., 335, 190 N. E., 924, “the law, in determining liability for harm done, refuses to follow the logical chain of causation beyond what it regards as the direct or proximate cause. # * 'Proximate’ in this connection is used in contradistinction to the term 'remote.’ ” (Emphasis ours.)

There is certainly nothing in the language of the General Assembly which would require this court to determine that the General Assembly intended there should be any award of compensation for an injury in an instance where the employment was only a remote cause of the injury. If the language used by the General Assembly is construed, as this court has construed it, so as to require that the consequences of an injury have a proximate causal relationship to the injury, it would not be reasonable to construe the language of the General Assembly so as to require a mere causal relationship between the injury and the employment.

Prior to the 1937 amendment of Section 1465-68, General Code, the statutory language provided for compensation to an employee “injured * * * in the course of employment. ’ ’ By reason of the amendment to. that statute in 1937 (117 Ohio Laws, 109), the term “injury” is now limited further to one “received in the course of, and arising out of, the * * * employment.,” There would, therefore, appear to be greater reason now for insisting upon a proximate causal relationship between the employment and the injury claimed to be compensable than there was prior to that 1937 amendment. See Slanina v. Industrial Commission, 117 Ohio St., 329, 158 N. E., 829.

As recently as 1940, this court used language, in describing the necessary causal relationship between the'injury and its consequences (as heretofore pointed out this court has held this must be a proximate one), similar to that which has usually been used in describing the necessary causal relationship between the employment and the compensable injury. Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932. This also tends to show that the failure of this court heretofore to specify, as a requirement, that the causal connection between the employment and the injury must be a proximate one, was probably due to the absence of any necessity of determining that question in a particular case.

Our conclusion, therefore, is that, in order for an injury to be compensable, there must be a proximate causal relationship shown between the employment and the injury: A remote causal relationship is not enough. Unless there is such a proximate causal relationship, the injury cannot be said to be one “arising out of, the # * * employment, ’ ’ even where it is received in the course of that employment.

Although the jury’s answer to the interrogatory did not establish any such proximate causal relationship, the question still remains whether the evidence required a finding that there was such a relationship.

In order to establish any causal connection between decedent’s death and an injury received in the course of his employment, the plaintiff must have relied upon the testimony of two physicians, one who testified for the plaintiff and the other who testified for the defendant.

After a hypothetical question, outlining the facts preceding decedent’s death, plaintiff’s physician Dr. Heinold, who had never seen decedent; was asked if he had an opinion “as to whether there was any causal relation between the events immediately preceding his death * # * up to the time of his collapse and his death.” He stated that he did; and was permitted to testify “that the events previous to the man’s collapse contributed to the collapse and his eventual death. * * (Emphasis ours.)

Later, he testified also that there was, in his opinion, a connection between the thrombosis and the symptoms of a heart ailment, which had been described to him as being experienced by McNees prior to the day of his death. On cross-examination he admitted that a man might “possibly” die as a result of coronary thrombosis without any strain, that that does happen occasionally, and that, while unusual, people do die as a result of such thrombosis without any history of exhaustion or unusual activity immediately preceding death. In his testimony he did not express an opinion as to any “probable” cause of decedent’s thrombosis or death. Cf. Drakulich v. Industrial Commission, supra.

The former deputy county coroner, Dr. Ventress, testified for the defendant. After a hypothetical question was stated to him, he was asked if he could “give us an opinion based upon reasonable medical certainty as to the factors causing this man’s death.” He stated that he could and, after outlining several factors, stated, “I think that this anxiety and nervousness more so than any physical exertion would be the factor that caused the coronary condition to become aggravated enough to cause the death.” On cross-examination he testified “that a majority of coronary conditions result not from physical exertion as much as * * * from mental strain or some other condition which we do not know.” (Emphasis ours.) He further stated that coronary death might come “on a person just walking down the street or without any more physical exertion than what they normally exert.”

If there was substantial evidence tending to prove that decedent’s employment was the probable cause of his coronary thrombosis, which we do not decide, there would be sufficient evidence to justify a jury in finding that decedent’s employment was the proximate cause of that thrombosis. However, the foregoing outline of their testimony shows that these physicians testified that something else, apart from decedent’s employment, could have caused his death. The question of proximate cause, therefore, would remain one for the jury. The evidence in this case was not such as to require a directed verdict for the plaintiff on the issue whether the injury was the proximate result of decedent’s employment.

We have, therefore, a situation where the- evidence received upon the trial is not such as to require a determination, as a matter of law, that decedent’s employment was the proximate cause of the coronary thrombosis, which admittedly caused decedent’s death. Assuming, without deciding, that there was sufficient evidence tending to prove that such employment was the proximate cause of the coronary thrombosis or death so that there was a question for the jury on such proximate causation, the answer to the interrogatory does not determine that anything was a proximate cause.

In our opinion, therefore, it was error for the trial court to grant plaintiff’s motion for judgment notwithstanding the verdict. The judgment of the Court of Appeals is, therefore, reversed and the cause is remanded to the Common Pleas Court with instructions to enter judgment on the verdict for defendant and for further proceedings in accordance with law.

Judgment reversed.

Weygandt, C. J., Matthias and Turner, JJ., concur.

Hart and Zimmerman, JJ., dissent.

Stewart, J., not participating.

Hart, J.,

dissenting. As indicated by the majority opinion, the court reverses the judgment in this case because in its opinion the record fails to disclose a proximate causal relationship between decedent’s employment and either the mental strain and excitement to which the decedent was subjected or the coronary thrombosis causing his death.

Section 1465-68, General Code, a part of the Workmen’s Compensation Act, provides for compensation for a workman’s injury or death “in the course of and arising out of his employment.” This statute requires that a death claim, to be compensable, must be based upon an accidental injury which was the direct and proximate cause of the death. And, to be compensable, the injury must “arise out of” the employment, that is, the injury must have its origin in a risk connected with the employment,, its scope and character, its exigencies and necessities, its conditions and environments, from which employment the injury, though unforeseen, may after the event be recognized to have flowed as a rational consequence.

By virtue of Section 11420-18, General Code, where a special finding of facts by the jury is inconsistent with the general verdict, the former shall control the latter and the court may give judgment accordingly. By present Section 11601, General Code, where, upon the statements in the pleadings or upon the evidence received upon the trial, a party is entitled by law to judgment in his favor, judgment shall be so rendered ' by the court, although a verdict has been found against him, without regard to whether a motion to direct a verdict may have been made or overruled.

Counsel for plaintiff in the instant case first made a motion for judgment notwithstanding the general verdict, on the ground that a special verdict of the jury in answer to the interrogatory required a judgment in favor of the plaintiff, but later filed an amended motion for judgment in favor of the plaintiff notwithstanding the general verdict of the jury for the defendant, on the ground that the evidence in the case and the special verdict of the jury and answer to the interrogatory submitted to it justified and required a judgment in favor of the plaintiff. The trial court sustained the latter motion. Although the jury, in the instant case, rendered a general verdict for the defendant, it answered in the affirmative the question: “Was the cause of Taylor McNees’ death, the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944?”

Concerning the interpretation and application of the jury’s answer to the interrogatory in question, the majority opinion says:

“Since the jury’s answer to the special interrogatory finds a causal connection between decedent’s death and the strain and excitement of certain conditions of his employment, it necessarily establishes a causal connection between his employment and the coronary thrombosis. This follows because there is no dispute in the evidence as to the fact that coronary thrombosis was the proximate cause of death.”

With that statement I fully agree. Then, the majority opinion further continues:

“However, the answer to the interrogatory does not establish that there was any proximate causal relationship between decedent’s employment and either the mental strain and excitement or the coronary thrombosis or his death. ’ ’

With that statement, as I interpret the record, I am unable to agree. In the first place, it seems to me that when the jury found that “the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus” caused McNees’ death, it necessarily found that such “mental strain and excitement of the driving conditions” were incidents and risks of his job or employment in which he was then engaged. It seems to me from a common-experience rather than a metaphysical approach, this-record discloses that these conditions conld arise from no source other than his employment.

Furthermore, the evidence in this case was summed up in a hypothetical question submitted to Fred W. Heinold, a practicing physician and surgeon, and a witness in this case, as follows: That the witness was to assume that the testimony was that prior to the day of McNees’ death he had experienced some dizziness, shortness of breath and heart pains, but had never felt the necessity of any medical assistance for any of these conditions, and had never lost any time from his regular employment up to that day, which employment was bus driver for the Cincinnati street railway; that on the night of his death he was driving one of its regular busses at abou’t eleven o’clock at night and it was an exceedingly foggy night; that it was impossible for him to see the street ahead of him clear enough to drive and he called on one of the passengers to stand on the front step of the bus with the front door open so the passenger could look out around the windshield and see the curb and guide McNees and warn him of anything which might be in the path and also keep him on the line of the street; that the street had a number of turns and he could not set his course in a straight line but had to make a number of turns for the street; that there was another passenger on his bus, a young boy, sitting behind the driver’s seat and looking out of the window on the left side of the bus, who made a game out of reversing the directions given by the man on the step; that the bus was traveling only about five miles per hour, at which speed steering the bus was much more difficult than at its normal course of speed; that after McNees had traveled in that manner for between a half mile and a mile, he operated his bus too far to the left in the street and the trolleys came off the wires, and in an effort to adjust that situation he got off and on the bus two or more times, went behind the bus and pulled the trolleys in an effort to make them reach the wires and then after his last unsuccessful effort in that respect returned to the bus with the intention of having his bus pushed by another bus which had come up from behind; and that when the second bus had pushed his bus only a foot or two, he collapsed over the wheel with a gurgling sound in his throat.

When asked to give his opinion, based on these facts and reasonable medical certainty, whether there was any causal relation between the events immediately preceding McNees’ death, Heinold replied “that the events previous to the man’s collapse contributed to the collapse and his eventual death because of the tremendous strain that was placed upon this individual’s physical being and his mental being both, but particularly on the strain of his physical effort.”

What were these “events,” previous to McNees’ collapse, which contributed to the collapse and the eventual death? Clearly, in my opinion, these events were the activities, the exigencies and the conditions of his employment as detailed in the hypothetical question.

In my opinion, there was evidence of a causal connection between the activities of the employment and McNees’ collapse resulting in death. This evidence was undisputed and warranted the court, as a matter of law, to enter judgment in favor of the plaintiff notwithstanding the general verdict of the jury.

In my opinion, the judgment in this case should be affirmed.

Zimmerman, J.,

dissenting. When the jury in this case specifically found, in response to defendant’s interrogatory, that McNees’ death was attributable to the mental strain and excitement incident to the driving conditions which confronted him as he drove the trolley bus on the night of January 17, 1944, such finding was inconsistent and irreconcilable with the general verdict for the defendant, and the trial court, in conformity with Section 11420-18, General Code, properly granted plaintiff’s motion for a judgment notwithstanding the verdict.

Under the evidence presented at the trial, the answer to the interrogatory could be interpreted only to mean that the extraordinary strain and excitement to which McNees was subjected in the performance of the duties of his employment by reason of the heavy fog and other trying conditions existing at the time was directly responsible for the seizure which killed him.

Section 1465-68, General Code, as amended, provides in part: “The term ‘injury’ as used in this section and in the Workmen’s Compensation Act shall include any injury received in the course of, and arising out of, the injured employee’s employment.” (Emphasis mine.)

A heart attack, paralysis or similar afflictions resulting from mental strain or excitement caused by an event occurring in the course of the employment is regarded as an accidental injury arising out of the employment. Hoage v. Royal Indemnity Co. (C. A., D. C.), 90 F. (2d), 387; Van Ness v. Borough of Haledon, 136 N. J. L., 623, 56 A. (2d), 888; 58 Am. Jur., 757, Section 255, and cases cited in the notes.

In the New Jersey case cited just above, decided by the Court of Errors and Appeals, it was stated near the close of the opinion:

“The immediate cause of the officer's death was a coronary occlusion induced by emotional and nervous strain attending the performance of his duty, and thus his demise was the result of an accident which arose out of and in the course of his employment.”

In my opinion, upon the record, plaintiff is entitled to an award of death benefits within the design and intendment of the Ohio Workmen’s Compensation Act and the lower courts were correct in so determining.  