
    Industrial Commission of Ohio v. Jasionowski.
    
      Workmen’s compensation—Appeal to common pleas courts All evidence in transcript competent—Section H65-90, General Code—Opinion of Court of Appeals law of case in subsequent proceeding—Error to charge jury that procedural statutes before Industrial Commission apply— Competency of evidence determined by trial court—Error to charge that amount of testimony constitutes preponderance—“Testimony” and “evidence” and “compensation” and “benefits” distinguished—Compensation Act liberally construed in favor of employes and heirs■—Expectation of wage increase considered in determining weekly wage, when.
    
    1. Opinion by Court of Appeals, in proceeding under Workmen’s' Compensation Act, deciding that all evidence contained in transcript from Industrial Commission was competent, became law of case on subsequent proceedings.
    2. Section 1465-91, General Code, providing that Industrial Commission shall not be bound by either common-law or statutory rules of evidence or technical rules of procedure, is intended as guide for Industrial Commission, and cannot properly be given as part of charge to jury in trial on appeal from award of commission.
    3. When action for compensation is tried in court, trial judge must rule on competency of evidence, and jury has no investigation to make, except as to evidence received and applied under direction of court.
    4. In action for compensation by mother for death of daughter, charge that jury need only find which side is likely to have the truth, and basis or speculation on probabilities must arise on testimony presented, and that it is only “amount of testimony” which determines preponderance, was erroneous, since jury could not speculate on probabilities, and was required to determine case on weight of evidence.
    5. Word “testimony” is limited to that which is oral, while word “evidence” includes both that which is written and oral.
    6. Section 1465-85, General Code, providing that, if injured employe was of such age and experience that under natural conditions wages would be expected to increase, such fact may be considered in arriving at average weekly wage, applies to allowance of compensation whether employe is injured or killed, and instruction applying statute in action for compensation for death of employe was proper.
    7. Under Sections 1465-82 to 1465-85, General Code, relating to benefits allowed in case of death or injury to employe, distinction is drawn between “compensation” and “benefits;” former applying to allowance where employe is only injured, and latter applying in case of death.
    8. Workmen’s Compensation Law is to be liberally construed in favor of injured employes and their heirs.
    (Decided November 22, 1926.)
    Error: Court of Appeals for Lucas county.
    
      Mr. Frank E. Galkins, for plaintiff in error.
    
      Mr. J. Farrington Boyd, for defendant in error.
   Richards, J.

Lizzie Jasionowski appealed to the court of common pleas from an adverse decision of the Industrial Commission rejecting a claim arising out of the death of her daughter Wanda. The first trial of the action resulted in a directed verdict against her, and the judgment entered thereon was reversed by this court on May 17, 1926, reported in 22 Ohio App., 112, 153 N. E., 247. On a retrial of the case in the court of common pleas the jury returned a verdict in her favor awarding benefits at the rate of $6 per week for 104 weeks, and $150 for funeral expenses, and $350 on account of nurse, medical, hospital, and surgical expenses. This proceeding in error is brought to secure a reversal of the judgment rendered on that verdict.

Section 1465-89, General Code, limits the allowanee to be paid for medical, nurse, and hospital services and medicine to the sum of $200, except in unusual cases, wherein it is clearly shown that the actual necessary amount exceeds that sum. The record contains nc evidence showing this to be an unusual case, or that the amount exceeds the sum named in the above statute.

The statute in force at the time of the injury and death of Wanda Jasionowski, daughter of Lizzie Jasionowski, required that the jury should determine the right of the claimant upon the evidence contained in the record certified by the Industrial Commission, and upon no other. Section 1465-90, General Code, as amended in 109 Ohio Laws, 296. That statute was controlling in this case, and the opinion of this court, when the case was formerly here, shows that it was decided that all evidence contained in such transcript was competent. That decision became the law of the case. Notwithstanding the statute and the decision thereon, the trial court excluded much of the evidence received by the Industrial Commission, and this ruling was prejudicial to that commission.

At the request of Lizzie Jasionowski the trial court charged the jury as follows:

“2. You, the jury, are instructed as a matter of law that you shall not be bound by the usual common-law or statutory rules of evidence, or by any. technical or formal rule or procedure other than as herein provided; but may make investigation in such manner as in your judgment is best calculated to ascertain the substantial rights of the parties, and to carry out justly the spirit of this act. ’ ’

It is true that Section 1465-91 of the General Code provides, among other things, that the Industrial Commission shall not he bound by either the common-law or statutory rule of evidence, or by any technical or formal rules of procedure, other than as provided in the statute, but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the act. That statute was enacted as a guide for the Industrial Commission, and cannot properly be given as a part of a charge to a jury. When the case is tried in court, the duty rests upon the trial judge to determine as to the competency of the evidence, and the jury has no investigation to make except as to evidence which the trial judge permits it to receive, and this is to be applied under the direction of the trial judge as to the law. The court erred in giving this instruction.

In the course of the general charge the court used the following language:

“You are not required to have specific and certain evidence so that you are convinced about anything. You are only to find on the case as it stands before you which side is likely to have the truth, and your basis of calculation or speculation upon the probabilities must arise upon the testimony which has been presented to you, so, if you find that there is a preponderance of testimony by which you can conclude that- the first proposition is correct, then you will continue to find as I have told you, and then consider the second proposition, and, if you find the preponderance in favor of that proposition, you will act accordingly.
“It is only the amount of testimony that inclines you to look that way that amounts to a preponderance.”

This language could not fail to be confusing and misleading to the jury, and was erroneous. Ii is not for the jury to speculate upon probabilities, nor even to determine the same upon the testimony, but to determine the case upon the weight of the evidence under the instructions of the court as to the law. It is not the “amount of testimony,” but the weight of the evidence, that is to control. For a jury to base its verdict upon the “amount of testimony” is fully as bad as to determine it by the number of witnesses. It must be observed that the word “testimony” is limited to that which is oral, while the word “evidence” includes both that which is written and that which is oral, and in the case under consideration, all, or nearly all, of that which was introduced, was written.

On request of the plaintiff below the trial judge gave instruction No. 1, reading as follows:

“You are instructed as a matter of law that, if you find from the evidence that Wanda Jasionowski was of such age and experience when injured as that under natural conditions her wages would be expected to increase, the fact may be considered by you in arriving at her average weekly wage. ’ ’

It is strenuously insisted that this charge is erroneous. The charge is a substantial transcript of Section 1465-85, General Code, but it is insisted that the section applies only to the allowance of compensation to employes that are injured, but not killed. It is quite true that a distinction is drawn between “compensation” and “benefits” in the Workmen’s Compensation Act; the former applying to the allowance made where the employe is only injured and the latter applied in case of death.

Sections 1465-82 and 1465-83 fix the benefits to be allowed in case of death, and to whom they shall be paid. These sections are immediately followed by Section 1465-84, which provides:

“The average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits. ’ ’

Then follows Section 1465-85, General Code, which provides, in substance, that, if the injured employe was of such age and experience when injured as that, under natural conditions, his wages would be expected to increase, that fact may be considered in arriving at his average weekly wage. We think this latter section must be construed in connection with the one immediately preceding it, and that it cannot be herid to be limited to cases where compensation is to be fixed in contradistinction to benefits. It is significant that this section uses neither of the words. Certainly the Workmen’s Compensation Law must be liberally construed in favor of injured employes and their heirs, and no reason is perceived why Section 1465-85, General Code, should not apply as well to dependent heirs who are to receive benefits as to injured employes who are to receive compensation. It may not be important, but it is significant, that the editor of Page’s New Ohio Annotated General Code inserts as the subheading to this latter section, “Pacts considered in computing benefits.”

Reliance is placed by counsel for plaintiff in error on Di Cicco v. Industrial Commission, 11 Ohio App., 271, and it must be admitted that some language used in the course of the opinion in that case justifies the argument of counsel, although the matter was not involved in the question to be decided. The same judge who wrote the opinion in the case just cited also wrote the opinion in Russitto v. Otis Steel Co., 12 Ohio App., 189, and in the course of the latter opinion he states that the only question presented or determined in the Di Cicco case was the meaning of the term “earning capacity,” as used in the statute. Holding as we do that Section 1465-85, General Code, applies to a death claim, the trial judge was not in error in giving plaintiff’s request No. 1.

However, for the errors indicated, the judgment must be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

"Williams and Culbert, JJ., concur.  