
    Gillen et al., Appellants, v. Industrial Commission of Ohio, Appellee.
    
      (Decided May 12, 1938.)
    
      Mr. G. W. Elliott, for appellants.
    
      Mr. Herbert 8. Duffy, attorney general, Mr. Eugene Carlm and Mr. G. L. Hawthorne, for appellee.
   Matthews, J.

This is an appeal on questions of law from a judgment rendered by the Court of Common Pleas of Warren county upon a verdict in favor of the defendant, the Industrial Commission of Ohio, upon an appeal from an order denying to the dependents of Homer Grillen, deceased, the right to participate in the Workmen’s Compensation Fund.

The evidence raised issues triable to a jury and we will, therefore, consider the claims of error in the submission.

(1) The claim is that the court erred in the general charge and particularly in defining the issues of fact upon the decision of which, by the jury, the general verdict was made to depend. The issues as defined by the court were:

“First: Did the plaintiffs’ former husband and father sustain an injury arising out of any connection with his employment, and did death occur as the proximate result of the injury, or was acceleration of death the proximate result of said injury?

“Second: Was the present suit commenced within 60 days after the plaintiff received notice of a denial' of any claim?”

It is the submission of the second issue to which exception is taken. As to that issue, the court said:

“The burden of proof is on the plaintiff to prove, by a preponderance of the evidence, that this suit was commenced within 60 days after she had noticie of the denial of her claim. If she fails to prove that by a preponderance of the evidence, then again yonr verdict must be for the defendant.”

Now, it is claimed that no such issue can be submitted to the jury, for the reason that Section 1465-90, General Code, provides that the right of the claimant-to participate must be determined upon the evidence found in the transcript, of the proceedings before the commission upon the rehearing and that, as the transcript could not possibly contain anything relating to the time of the receipt of notice of a denial of the claim, to so construe the statute would deprive all claimants of any chance of success on appeal, which would defeat the purpose of the statute and be an absurdity.

But does Section 1465-90, General Code, preclude the introduction of evidence dehors the transcript? As we construe that s'ectioü., it does limit the evidence to that contained in the transcript upon the issue that was before the commission upon the rehearing. That issue was “the right of the claimant to participate.” in the fund. That issue would, be determined on appeal as of the date of the rehearing before the commission upon the evidence in the transcript. A right that existed then might, however, be lost by events happening subsequently to that rehearing. Section 1465-90, General Code, does not exclude evidence upon any such issue raised by the pleadings. One of the ways that the right might be lost is failure to appeal within the time prescribed by law, thereby giving to the denial by the commission the quality of finality. In Beach v. Union Gas & Electric Co., 130 Ohio St., 280, at 284, 199 N. E., 181, it is said:

“Compliance with such provisions, the filing of a petition within sixty days, and the making of the defendant self-insurer a party to the action are, under the foregoing section, made conditions sine qua non to the assumption of jurisdiction by the trial court. To hold otherwise we would have to ignore those statutory requirements by judicially deleting them from the act. These requisites are not found in previous acts but were inserted for the first time in the amendment of Section 1465-90, General Code, in the year 1925, thus, conclusively showing a legislative purpose of making them an essence to jurisdiction.”

It is seen from this quotation that the requirement that the appeal be taken within sixty days, if at all, is a limitation — and more. It is a condition “sine qua non to the assumption of jurisdiction by the trial court.”

Where the jurisdiction of the court depends upon the existence of certain facts and those facts are disputed, we see no error in submitting such issue to the determination of the jury.

But it is said there was no dispute as to the facts and that, therefore, the issue was one of law which the court should have decided. In passing upon this contention of counsel, the trial court said: “The answer of the defendant does not admit the date when the plaintiff received notice of the disallowance of her claim.” An examination of the answer discloses that it would be necessary to give the allegations a very broad interpretation to make them include an admission of the date of receipt of notice by the plaintiff. However, an examination of the petition discloses that there was no averment of notice at all. The plaintiff alleges the jurisdictional fact in this language: “And, thereafter, to wit, on or about the 4th day of June, 1937, the commission again disallowed said claim for the same reason; and now, within sixty days thereafter, the plaintiffs file this their petition on appeal.” Of course, if the appeal was filed within sixty days .of the denial on rehearing it was necessarily filed within sixty days of the notice. The answer certainly admits the date of the denial on rehearing, and the date of filing the appeal was conclusively proven by the records of the court in this case, of which the court would take judicial notice. There was, therefore, no such issue of fact to be submitted to the jury. We are of the opinion that it was prejudicial error to submit as an issue of fact that which was not an issue. Baltimore & Ohio Rd. Co. v. Lockwood, 72 Ohio St., 586, 74 N. E., 1071.

(2) Counsel for plaintiffs requested the court to give this special charge in writing beforé argument:

“In order to entitle the plaintiffs to your verdict, it is not necessary that it be either clearly or satisfactorily proved that Homer Gillen suffered an injury in the course of his employment for the Maxwell Paper Company, or that he suffered disability or death, or that such disability and death were proximately caused by such injury. It is only necessary that from the evidence you find it more probable or likely that he suffered an injury in the course of and arising out of his employment by said company at or about the time and substantially in the manner alleged in the petition, that he was disabled and died at the time alleged in the petition, and that such injury was a proximate cause of such disability and death, than otherwise.”

The charge is a correct statement of the degree of proof required of the plaintiffs in this case, and the court erred in refusing it.

(8) It is claimed that the court erred in permitting defendant to introduce testimony of fellow employees as to whether the deceased employee had mentioned any injury or accident to them. While the court later instructed the jury to disregard this evidence, it is claimed that did not sufficiently cure the error. As the judgment must be reversed on other grounds, it is sufficient to say that the court made the proper ruling in excluding the evidence.

(4) Next, it is urged that the court erred in admitting testimony of fellow employees that they had heard no talk of any accident of Homer Gillen before the application for compensation was filed. The only testimony of this character to which our attention has been called is that of Karl Graffan, who was the foreman in the department where Gillen was working at the time of the alleged injury, and he testified that under the rules of the company it was the duty of employees to report accidents or injuries in the department to him. A report to the employer by the employee was necessary in order that the employer could comply with Section 1465-99, General Code, requiring the employer to keep a record of all injuries and report them to the commission within one week of the happening of the injury. Silence, when there is a duty to speak, if certain conditions exist, is some evidence that the conditions do not exist. It is an admission that the occasion for speech has not arisen. 17 Ohio Jurisprudence, 314, Section 246.

(5) The exclusion of statements made by the deceased employee concerning his injuries to various persons was proper, as they were self-serving and fell within no exception to the rule of exclusion.

This rule applies to statements-made to his physician as to the cause of his injuries. Coutellier v. Industrial Commission, 126 Ohio St., 546, 186 N. E., 400.

(6) Special charge number three, that the deceased employee was under no obligation to mention his injuries to any employee of his employer was too broad, in that it disregarded the rule of the employer requiring reports of injuries to the foreman. It was properly refused.

(7) The court charged the jury that all of the assumed facts stated in a hypothetical question had to be found to be true by the jury before the opinion based thereon would be of any value and that “if any assumption is not warranted then his answer is of no value.” This stated the rule too strongly against the weight to be given to expert testimony. If the jury should find that all the elements of the hypothesis had been substantially proven, then it should give to the opinion based thereon such weight as it is entitled to under all the circumstances. Haas v. Kundtz, 94 Ohio St., 238, at 247 et seq., 113 N. E., 826. As the ease will be retried, it should be stated that immaterial data should not be included in the hypothesis upon which an opinion is sought.

(8) It is claimed that the court erred in admitting the testimony of Dr. Max Peet, who performed the operation removing a tumor from the brain of the deceased employee. In Industrial Commission v. Warnke, 131 Ohio St., 140, 2 N. E. (2d), 248, the Supreme Court held that the provisions of the Workmen’s Compensation Act (Sections 1465-91 and 1465-95, General Code, particularly) had modified Section 11494, General Code, so that, in cases against the Industrial Commission for compensation, the right to waive the privilege survived to the widow of the deceased employee and that the attending physician was a competent witness as to knowledge and information gained in his professional capacity. Now by Section 11494, General Code, the privilege may be waived in one of two ways: “[1] By express consent of the client or patient; [2] and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject.” The plaintiff did not consent that the physician should testify, so that the only question is whether she waived the privilege by taking the witness stand. It appears that her testimony related to the general physical condition. She did not testify to any communication between her husband and the physician or to any advice given by the physician to his patient. Such testimony by a patient does not constitute a waiver of tbe privilege. Harpman v. Devine, 133 Ohio St., 1, 10 N. E. (2d), 776. We see no reason to bold that similar testimony by tbe widow of tbe patient would have a greater effect.

An examination of tbe testimony of Dr. Peet discloses that be testified that be performed an operation whereby tbe brain tumor was removed and that, in bis opinion, this tumor could not have been caused by tbe kind of a blow on tbe bead which it was claimed tbe employee received. He was cross-examined at great length on tbe basis of bis opinion and bis qualifications as an expert.

As it was undisputed that tbe immediate cause of death was tumor of tbe brain and that tbe deceased employee bad submitted to two operations for tbe purpose of removing it, we are of tbe opinion that no prejudice resulted from permitting Dr. Peet to testify that be performed tbe operation. His opinion as an expert, based on hypothetical questions, was competent notwithstanding* be bad been tbe attending physician. To exclude bis opinion based on actual knowledge when that knowledge conformed to the admitted facts rather than having it elicited in answers to the same facts stated hypothetically certainly would be giving too much consideration to a mere difference in form. We would not reverse tbe judgment on that ground.

We find no other error prejudicial to tbe appellant.

For these reasons, tbe judgment is reversed and tbe cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Boss, P. J., and Hamilton, J., concur.  