Burens v. Industrial Commission

• Decision Date: 16 February 1955
• Docket Number: No. 34000,34000
• Citation: 162 Ohio St. 549,124 N.E.2d 724
• Parties: , 55 O.O. 436 BURENS, Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellant.
• Court: Ohio Supreme Court

Page 549

162 Ohio St. 549

124 N.E.2d 724, 55 O.O. 436

BURENS, Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellant.

No. 34000.

Supreme Court of Ohio.

Feb. 16, 1955.

Syllabus by the Court.

1. The hypothesis upon which an expert witness is asked to state an opinion must be based upon facts within the witness' own personal knowledge or upon facts shown by other evidence.

2. An expert witness must confine his opinion to matters within his specialty or scientific field of inquiry and may not express an opinion upon matters as to which the jury is capable of forming a competent conclusion.

3. In an action to determine the right of the widow of a deceased employee to participate in the insurance fund established by the Workmen's Compensation Act, an expert witness, in answering a hypothetical question concerning the causal relationship between the death and employment, may not draw an inference of injury from the premises stated, where such premises do not contain the fact of injury, and then proceed to base an opinion thereon as to causal relationship, where such inference is not confined to matters properly within the scientific field of inquiry of the witness.

4. To permit a jury to make a choice between two irreconcilable inferences raised by the facts in evidence as to the existence of accidental injury is to substitute speculation and conjecture for proof; and in such a situation a jury question is not presented.

The facts in this case are not in dispute. On August 24, 1950, one George N. Burens was employed by H. E. Beschener, Inc., as a painter in a home under construction. At 12:30 p. m. on that date, following a half-hour lunch period, the 62-year-old Burens went into the dinette to paint shelves in a china cupboard. At approximately 2:00 p. m., a fellow employee, who had been working in a different area, found Burens lying face down on the dinette floor. A police officer who was summoned called a physician, who, upon examination, pronounced Burens dead and listed on the death certificate as the cause of death, 'probable coronary thrombosis.'

The lowest of the shelves being painted by Burens was three feet from the floor. The fellow employee testified that he saw a streak of blood at the edge of the second of the three shelves. The police officer testified that there was a blotch of blood at the edge of the bottom shelf, that he observed a pool of blood around Burens' head and a cut on the bridge of the nose, and that a trickle of blood came from that point, as well as from the mouth and the right ear. There was also a cut on the right cheek opposite the mouth. The undertaker testified that there was a separation of the cartilage from the bone at the bridge of the nose.

Prior to his death, Burens was suffering from a heart ailment.

On March 16, 1951, Burens' widow, plaintiff-appellee herein, filed an application for death benefits under the Workmen's Compensation Act. After disallowance of the application by the Industrial Commission, defendant-appellant herein, an application for rehearing was filed, a rehearing had, and the claim again disallowed.

Plaintiff prosecuted an appeal to the Court of Common Pleas where a jury returned a verdict that plaintiff was entitled to participate in the State Insurance Fund, defendant's motion for a directed verdict at the close of all the evidence having been overruled.

Defendant then prosecuted an appeal to the Court of Appeals for Cuyahoga County, which court affirmed, without opinion, the judgment of the Court of Common Pleas.

The cause is now before this court upon the allowance of a motion to certity the record.

C. William O'Neill, Atty. Gen., Paul Tague, Jr., and James L. Young, Columbus, for appellant.

Davis, Davis & Handleman and Abram M. Kaplan, Cleveland, for appellee.

BELL, Judge.

The first question involved in this appeal is whether an expert witness, in answering a hypothetical question, may draw an inference of injury from the premises stated, where such premises do not contain the fact of injury, and then proceed to base an opinion thereon as to causal relationship, where such inference is not confined to matters properly within the scientific field of inquiry of the witness.

The hypothetical question in issue is long and nothing would be gained by setting it out in full here. Briefly summarized, a physician was asked by counsel for plaintiff to assume the tacts essentially as set out above, including an assumption that the cause of death was 'probable coronary thrombosis' according to the death certificate. But no assumption was made in the hypothetical question of the fact of accidental injury. The doctor's opinion was 'that the incident of August 24, 1950, precipitated a coronary thrombosis leading to Mr. Burens' death.' In giving the reasons on which his opinion was based, the doctor said:

'A. Mr. Burens had been working at least from 1945, doing the same particular type of work. He was seen by a fellow coworker with whom he had lunch and both of them returned to work at about 12:30 p. m., that Mr. Burens struck himself against the shelf of the cabinet which he was painting, which was severe enough to cause a fracture of the nose and to cause loss of blood which was noticed coming from his mouth, nose and ears, and a cut at the right lower cheek, and that this type of injury was severe enough to produce transient anoxemia, and the resultant trauma and shock produced his death which was a sudden death and the most common. Sudden death is that of coronary thrombosis.'

The cross-examination of the doctor is, in part, as follows:

'Q. Were you told, Doctor, that Mr. Burens struck his head on a shelf? Was that a fact given to you in the hypothetical question? A. In the hypothetical question, I was told that a streak of blood was seen on the edge of the shelf that he was painting and also on his nose and that there was a cut on his nose.

'Q. Were you told that he struck the shelf? A. No.

'Q. Where did you get that fact from, Doctor? A. I arrived at that conclusion by seeing that there was blood--or I am being told, rather, that there was blood on the edge of the shelf and that there was an abrasion on the bridge of the nose, and a cut across the bridge of the nose and blood coming from both mouth and ears.

'Q. You inferred that that's what happened, is that correct? A. Correct.'

A well recognized exception to the rule which excludes opinion evidence is found in a situation such as this where it is necessary to admit deductions from observed facts, which require scientific or specialized knowledge or experience and for which the general common sense and practical experience of the jury are inadequate. Steamboat Clipper v. Logan, 18 Ohio 375. It is similarly well recognized that qualified expert witnesses are not confined in their testimony to facts which are within their own personal knowledge but may state opinions which are based upon assumed facts. Williams v. Brown, 28 Ohio St. 547. Ordinarily, such an opinion is elicited by a hypothetical question which, for the purpose of the trial, assumes a state of facts that has been shown by the evidence of other witnesses or by the testimony of the expert himself.

However, certain limitations have been imposed upon the eliciting of opinion by means of the hypothetical question. Basic among these limitations is that the hypothesis must be based upon the facts of the particular case. In Williams v. Brown, supra, this court, in holding that, in an action for compensation for professional services claimed to have been rendered, an attorney, as an expert, can give his opinion as to the value of such...