Davis v. Goodyear Tire & Rubber Co.

• Decision Date: 04 February 1959
• Docket Number: No. 35536,35536
• Citation: 155 N.E.2d 889,168 Ohio St. 482
• Court: Ohio Supreme Court
• Parties: , 7 O.O.2d 302 DAVIS, Appellee, v. GOODYEAR TIRE & RUBBER CO., Appellant.

Page 482

168 Ohio St. 482

155 N.E.2d 889, 7 O.O.2d 302

DAVIS, Appellee, v. GOODYEAR TIRE & RUBBER CO., Appellant.

No. 35536.

Supreme Court of Ohio.

Feb. 4, 1959.

Walter E. deBruin, Akron, for appellant.

Leander P. Zwick, Jr., Canton, for appellee.

PER CURIAM.

The sole question presented to this court is whether the plaintiff suffered an injury compensable under the Workmen's Compensation Act, R.C. § 4123.01 et seq.

The alleged injury suffered by plaintiff was not a physical or traumatic damage or harm accidental in character and as a result of external and accidental means in the sense of being the result of a sudden mishap, occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place. The fact that plaintiff exerted more effort to remove the tire than is ordinarily required is not in and of itself sufficient to entitle him to participate in the State Insurance Fund.

The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed, on authority of Dripps v. Industrial Commission, 165 Ohio St. 407, 135 N.E.2d 873. See, also, Artis v. Goodyear Tire & Rubber Co., 165 Ohio St. 412, 135 N.E.2d 877.

Judgment reversed.

WEYGANDT, C. J., and STEWART, MATTHIAS and BELL, JJ., concur.

ZIMMERMAN, TAFT and HERBERT, JJ., dissent.

BELL, Judge (concurring).

It was my opinion at the time the case of Dripps v. Industrial Commission, 165 Ohio St. 407, 135 N.E.2d 873, was decided that the judgment then argeed upon by a majority of this court could not be reconciled with the decision in, and paragraphs three and four of the syllabus of, Malone v. Industrial Commission, 140 Ohio St. 292, 43 N.E.2d 266, or with Maynard v. B. F. Goodrich Co., 144 Ohio St. 22, 56 N.E.2d 195. Consequently, I concurred in the concurring opinion of Judge Taft to the effect that the Malone and Maynard cases, to the extent that they are inconsistent, were overruled by the decision in, and paragraph one of the syllabus of, the Dripps case. I am still of that opinion.

At the time of the decision in the Dripps case, the majority of this court chose one of what may be termed two irreconcilable lines of decision. During the two and one-half years since that case was decided there are doubtless many cases, in addition to the instant case, which have been decided on the authority thereof. To recede now from the position taken in the Dripps case would evidence an inconsistency to which I am unwilling to contribute. If this court was wrong in its interpretation of the statute as announced in the Dripps case and those which have followed it, and if the Workmen's Compensation Act is to be made a general policy of insurance for the employees of Ohio, as has been argued to this court on occasion, our error should be corrected by the General Assembly and a different approach to workmen's compensation outlined in clear and unequivocal legislative expression.

WEYGANDT, C. J., and STEWART and MATTHIAS, JJ., concur in the foregoing concurring opinion.

TAFT, Judge (dissenting).

On the evidence in this record, a jury could reasonably find that plaintiff was physically injured as a proximate result of a hazard of his employment (see McNees v. Cincinnati Street Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138), which was greater than that to which members of the general public are ordinarily subjected (see paragraphs three and four of the syllabus of Malone v. Industrial Commission, 140 Ohio St. 292, 43 N.E.2d 266), that is, the hazard of injury from the heavy physical exertion required 'in the performance of his work.' It does not appear however that there is any evidence of any accidental cause of plaintiff's injury or that such injury was caused by accidental means, although it is apparent that the evidence will support a finding that his injury was received in the course of plaintiff's employment and was suddenly and unexpectedly suffered, i. e., it represented an accidental result.

Thus, the question to be decided is whether an injury can be compensable where it is not caused by accidental means or where it is not the result of or caused by an accident, but where its occurrence represents an accidental result (in other words, where it is an injury that is suddenly or unexpectedly, i. e., accidentally, suffered although it is not the result of or caused by any accident).

Malone v. Industrial Commission, supra (140 Ohio St. 292, 43 N.E.2d 266), and Maynard v. B. F. Goodrich Co., 144 Ohio St. 22, 56 N.E.2d 195, apparently require the conclusion that such injury can be compensable. On the other hand, there are subsequent decisions which apparently require a contrary conclusion. Dripps v. Industrial Commission, 165 Ohio St. 407, 135 N.E.2d 873, and Artis v. Goodyear Tire & Rubber Co., 165 Ohio St. 412, 135 N.E.2d 877. Also, there are other subsequent decisions or statements by this court which defendant contends should require such a contrary conclusion. See Toth v. Standard Oil Co., 160 Ohio St. 1, 113 N.E.2d 81; Gerich v. Republic Steel Corp., 153 Ohio St. 463, 92 N.E.2d 393; and Nelson v. Industrial Commission, 150 Ohio St. 1, 80 N.E.2d 430.

Since 1913, our Workmen's Compensation Act has stated in substance that 'every employee, who is injured * * * in the course of employment, wherever such injury has occurred, provided the same was not purposely self-inflicted, is entitled to receive * * * compensation for loss sustained on account of such injury * * * as provided by' certain specified statutory sections. Section 4123.54, Revised Code. ¹

In none of the statutes providing for payment of workmen's compensation is there any expression of a legislative intention that the foregoing-quoted words 'injured' and 'injury' should be given other than their ordinary meaning or that all kinds of 'injury' should not be included, except that, as Section 4123.54, Revised Code, states, a compensable injury must be 'in the course of employment' and must 'not' be 'purposely self-inflicted.' Certainly, the Ohio General Assembly never expressly indicated any intent to limit the word 'injury' to an injury that was accidental or caused by accident. See Renkel v. Industrial Commission, 109 Ohio St. 152, 156, 141 N.E. 834; Johnson v. Industrial Commission, 164 Ohio St. 297, 306, 130 N.E.2d 807; and 1 Larson's Workmen's Compensation Law, 512, Section 37.19 ('Ohio, has no reference to 'accident' anywhere in the statute, but read the requirement in anyway').

However, in 1915, shortly after the Workmen's Compensation Act became effective in this state, this court was confronted with the contention that an employee who contracted a disease 'in the course of employment' was 'injured * * * in the course of employment' within the meaning of those words as used in a statute that corresponds with what is now Section 4123.54, Revised Code. In holding against that contention, this court pointed out that Section 35 of Article II of the Constitution relative to workmen's compensation, which was adopted in 1912, referred to both injuries and occupational diseases and thereby indicated an intention that injuries were not to include diseases; and this court further noted, as a distinction between injuries resulting from disease and injuries contemplated by the General Assembly in its use of the words 'injury' and 'injured,' that the former ordinarily had no accidental character and therefore, when the General Assembly used the words 'injured' and 'injury' in what is now Section 4123.54, Revised Code, it must have had in mind only accidental injuries. Industrial Commission of Ohio v. Brown, 92 Ohio St. 309, 110 N.E. 744, L.R.A.1916B, 1277. See Renkel v. Industrial Commission, 109 Ohio St. 152, 156, 141 N.E. 834.

We have found and been referred to no decision or pronouncement of law by this court prior to Industrial Commission of Ohio v. Franken, 126 Ohio St. 299, 185 N.E. 199, decided in 1933, that definitely requires that an injury be caused by accident or by accidental means in order for such injury to be compensable. ²

Although the 1934 decision in Spicer Mfg. Co. v. Tucker, 127 Ohio St. 421, 188 N.E. 870, and especially the reasons so clearly advanced therefor in the opinion by Weygandt, C. J., indicated to some that an injury might be compensable if it represented an accidental result although it was not caused by accident or by accidental means (see Industrial Commission of Ohio v. Luger, 54 Ohio App. 148, 150, 6 N.E.2d 573, decided in 1936), the General Assembly in 1937 apparently endeavored to settle the question as to compensability of such an injury by the passage of a bill, which did nothing but provide for the addition of the following to the then existing part of the statutory section that has now become Section 4123.54 (the substance of this added part now constitutes part of Section 4123.01, Revised Code): '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.' 117 Ohio Laws, p. 109.

When the origin of this language is considered, the intent of the General Assembly to reject the Franken case and approve the Spicer case becomes absolutely clear. In his opinion in the Spicer case, at page 423, Chief Justice Weygandt, in a quotation from 28 R.C.L. 787, which he called a 'helpful discussion of the term 'accident," had referred to the construction of the British statute by the House of Lords in Fenton v. J. Thorley & Co., A.C.1903, 443.

An examination of that case discloses that the British act provided for compensation for 'personal injury by accident arising out of and in the course of the employment.' It is at once apparent that the above-quoted 1937 addition to our Workmen's Compensation Act was merely a restatement of the words of the English act, with the omission of the limiting words 'by accident' after, and with the addition of the broadening word 'any' before, the...