Indus. Comm. v. Bartholome
| Decision Date | 14 March 1934 |
| Docket Number | 24369 |
| Citation | 128 Ohio St. 13,190 N.E. 193 |
| Parties | Industrial Commission Of Ohio v. Bartholome. |
| Court | Ohio Supreme Court |
Workmen's compensation - Evidence on appeal from denial of death award to dependents - Transcript Of claimant's testimony on rehearing for compensation for injury, admissible, when - Transcript is public record and proceeding to perpetuate testimony unnecessary - Section 1465-40, General Code.
1.The transcript of claimant's testimony, on file with the Industrial Commission, as to the time, place, manner, nature and extent of his injury, which testimony was given by him under oath on rehearing before the Industrial Commission after a denial of workmen's compensation for an alleged injury, in which proceeding the Industrial Commission by its counsel cross-examined the claimant, is admissible, upon the trial of an appeal from a denial of a death award to his dependent or dependents, for all purposes for which the transcript was available to claimant. (Industrial Commission v. Davis, 126 Ohio St. 593, distinguished.)
2.Under Section 1465-40, General Code, such transcript of testimony is a public record which must be preserved, and a proceeding to perpetuate such testimony is superfluous and' unnecessary.
Joseph Bartholome, for seven or eight years prior to June 5, 1929 was employed by the school board of the city of Cleveland, in the capacity of assistant custodian. He was a stationary engineer, having complied with the laws of the state in that regard. In his capacity of assistant custodian he was required to look after the heating of school buildings. It was his duty as such custodian to remove the soot, ashes and fine dust from the combustion chamber of the boiler in the building of which he had charge, twice during each year. This work was usually done during the Christmas holidays and after school was dismissed in June.
On June 15, 1929, Bartholome was working at the Mt. Auburn school and was ordered by the custodian to clean out the combustion chamber of the boiler in the school building. Entrance into this combustion chamber could be gained in two ways: either by crawling over the grates of the fire-box, or through a man-hole twelve or fifteen inches in width on the outside of the combustion chamber. This combustion chamber was immediately back of the fire box and was about twenty-two feet long, sixty-six inches across and Six feet high at its highest point, the height varying in different parts of the chamber.
There being an accumulation of soot, ashes and fine dust Bartholome took with him a shovel, broom, and a hose with which to cool the chamber, together with an extension ladder. The fire had been shut off the night before. The soot in the combustion chamber, according to Bartholome, had accumulated until it was from a foot deep up to the waist line.
Bartholome entered the combustion chamber about eight thirty in the morning. His helper had not turned the water on and he had no use for the hose. He completed scraping the bottom of the boiler, which formed the roof of the chamber, when he was overcome and fell down into deep soot. He inhaled a large quantity of soot, dust and gas, but was not so completely overcome that he could not get out of the combustion chamber. He managed to get out into the boiler room, where he was found a few minutes later by the custodian who took him out into the yard and placed him on a chair. While in the boiler room Bartholome had been coughing violently and expectorating to quite an extent, in an endeavor, as he stated, to clear his lungs and throat.
Bartholome went home about three o'clock in the afternoon, and reported back for work the next morning, but was unable to perform his duties. He continued to have a cough and spit up what he termed "black stuff" or soot. Within two weeks he went to a doctor. He was a man weighing nearly two hundred pounds, and was almost Six feet in height. His cough progressed and he began losing weight until he weighed about one hundred and thirty-seven pounds. When school resumed in September of that year he went back to work, but was unable to do the work required of him, and on November 4, 1929, at the instance of the custodian, he took a leave of absence. He filed an application with the Industrial Commission for compensation, and it was denied. On March 11 1931, Bartholome died. He left a widow, Emma Bartholome, and a son thirty-eight years of age. When he filed his application for compensation, Bartholome's testimony was taken before a referee representing the Industrial Commission. It was reported and reduced to writing by the stenographer of the Commission, and Bartholome was subjected to a cross-examination by counsel for the Industrial Commission, as disclosed by the record.
After Bartholome's death, his widow, Emma Bartholome, in March, 1931, filed her application for an award as a dependent of Joseph Bartholome. A hearing and rehearing were had on her claim, and on August 29, 1932, her claim was disallowed by the Industrial Commission. Within thirty days she filed her petition in the Court of Common Pleas of Cuyahoga county, appealing from the decision of the Industrial Commission, alleging in her petition that her husband, while in the combustion chamber in question, was overcome with fumes and gas which had accumulated therein, and alleging further that he had also inhaled a large quantity of soot and fine ashes which had accumulated in the combustion chamber, that as a result of being so overcome and inhaling such soot and fine ashes he received an infection of the lungs, which either caused him to contract tuberculosis, or aggravated a latent condition of tuberculosis, thus undermining his health so as to lower his resistance to tuberculosis, thereby aggravating the disease and hastening his death.
The cause was tried to a jury, and during the progress of the trial the transcript of the testimony of Joseph Bartholome, given before the referee, was offered in evidence by Emma Bartholome in her case. Objection was made by the Industrial Commission to its admission. The trial court overruled the objection and permitted Bartholome's testimony to be read, to the reading of which testimony the Industrial Commission by its counsel duly excepted.
In the Common Pleas Court a verdict was returned to the effect that Emma Bartholome was entitled to participate in the workmen's compensation fund, and judgment was entered upon such verdict. Error was prosecuted to the Court of Appeals, which court affirmed the judgment of the Common Pleas Court. Error is prosecuted to this court by the Industrial Commission to reverse the judgment of the Court of Appeals.
Mr. John W. Bricker, attorney general, Mr. R.R. Zurmehly and Mr. Donald W. Hornbeck, for plaintiff in error.
Messrs. Lustig & Lustig, for defendant in error.
The Industrial Commission claims that the judgment of the Court of Appeals should be reversed for three reasons:
First, that the Common Pleas Court erred in admitting into its record the testimony of the decedent, Joseph Bartholome, taken at the rehearing before the Industrial Commission on August 19, 1930, in connection with his application for compensation, which was prior to and a separate action from the one which the widow now brings.
Second, that the Common Pleas Court erred in allowing certain hypothetical questions to be answered by one of claimant's witnesses, Dr. Moore, for the rea- son that such hypothetical questions did not state facts supported by the evidence.
Third, that the Common Pleas Court erred in overruling the motion of the Industrial Commission for a directed verdict at the close of the plaintiff's testimony.
The decisive question in this case is whether or not Joseph Bartholome's testimony taken at the rehearing was admissible in evidence in Emma Bartholome's case.
The first proposition for determination is whether or not Bartholome's case was compensable. If it was not, then Emma Bartholome's case can not stand. Counsel for the Industrial Commission contend that there was no personal injury by accident in Bartholome's case, and that he was not entitled to compensation. A long list of cases is cited in support of this contention, beginning with the case of State, ex rel. Yaple, v. Creamer, Treas., 85 Ohio St. 349, 97 N.E. , 602, 33 L.R.A. (N.S.), 694, and ending with Industrial Commission v. Franken, 126 Ohio St. 299, 185 N.E. , 199.
It has been repeatedly held by this court that workmen's compensation does not come to claimants in the form of a pension. In other words, it is not the wear," but the "tear," that is compensable, leaving occupational diseases out of consideration as a matter of course. Bartholome undoubtedly died of tuberculosis. The Industrial Commission contends that as he had worked at his same occupation for a number of years the tuberculosis resulted from the breathing of dust and soot over a long period of time. If that be true, Bartholome would not be entitled to compensation. Bartholome's contention was to the effect that he was overcome by the fumes and gas which had accumulated in the combustion chamber, and that while in such condition he inhaled soot and fine ashes into his lungs, which caused him to contract tuberculosis, or aggravated a latent tubercular condition. Herein lies a dispute of fact, and there is credible testimony to support both theories.
Bartholome did not go into this combustion chamber every day. He entered it just twice a year. It was probably his business to see that the chamber was not heated and that it was free from gas and fumes before he entered it, but the fact that he may have failed to perform his duty along this line does not deprive him of compensation if he is otherwise entitled to it.
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