Industrial Commission of Ohio v. Carden

Decision Date17 April 1935
Docket Number24848.
Citation129 Ohio St. 344,195 N.E. 551
PartiesINDUSTRIAL COMMISSION OF OHIO v. CARDEN.
CourtOhio Supreme Court

Error to Court of Appeals, Cuyahoga.

Proceeding under the Workmen's Compensation Act by Ada Carden to recover compensation for the death of her husband, George Carden, while working for the City of Cleveland. A judgment of the Court of Common Pleas, on appeal from denial of compensation by the Industrial Commission of Ohio, was affirmed by the Court of Appeals, and the Industrial Commission of Ohio brings error.-[Editorial Statement.]

Judgment of Court of Appeals reversed, and judgment entered for the Industrial Commission of Ohio.

On June 26, 1931, George Carden, while working for the city of Cleveland, in the street department, on the municipal dump at the foot of East Fifty-Fifth street, was killed by lightning. His widow, Ada Carden, filed an application for compensation with the Industrial Commission of Ohio. Upon hearing her application was denied. On rehearing, her claim was likewise denied, and she appealed her case to the court of common pleas of Cuyahoga. At the close of all the testimony, the Industrial Commission moved for a directed verdict in its favor, and counsel for Ada Carden likewise moved the court for a directed verdict in her favor. The court thereupon excused the jury and heard argument on both motions. In passing on these motions, the court said:

‘ As far as the so-called hazard is concerned, there isn't any question, gentlemen, in my mind that the decedent did have the shovel in his hand, and the shovel was a so-called steel shovel; it had a wooden handle. Of course, if the electrical storm was one which was common so far as its dangers were concerned to the public generally the people generally, then there could be no recovery. I do find on account of the decedent having had this implement namely, the shovel, that it did attract the lightning to him to a greater extent than to persons in general, and that by reason of his being in the course of his employment, and having this shovel in and about his work he was exposed to a greater hazard, a greater danger.’

Judgment was rendered in favor of claimant. Error was prosecuted to the Court of Appeals of Cuyahoga county, which court affirmed the judgment of the court of common pleas, and error is prosecuted here to reverse that judgment.

Such further facts as the court deems necessary will be stated in the opinion.

Syllabus by the Court .

1. An act of God does not arise out of earthly employment, but, if the employment, through its activities, conditions, or environments, subjects an employee to a greater hazard from the act of God than that to which the general public in the community is subject, and the employee is injured by the act of God to which he is so subjected, a causal connection between the employment and the injury is thereby established, and the case is compensable under the Workmen's Compensation Law.

2. When an employee engaged in the work of leveling a roadway is sent to his work by a superior, just prior to or at the inception of an electrical storm, equipped with a steel shovel, and while with the steel shovel in his hands is struck by lightning and killed, the steel shovel in the employee's hands subjects him to a hazard greater than that of the general public in the community, and, if such fact is proven by his dependent wife, she is entitled to participate in the state insurance fund.

3. Where, at the close of all the testimony, both parties to the litigation move for an instructed verdict, the ‘ most favorable light’ rule disappears, and the trial court must consider the testimony of each side for just what it is worth.

4. Under such circumstances, the trial court sits as a jury, and, where there is no direct testimony to the operative fact that the deceased had the steel shovel in his hands when he was struck by lightning, there must be some testimony from which a logical inference can be drawn as to the existence of such fact; otherwise, the case fails for lack of proof.

5. Courts of this state take judicial cognizance of any scientific fact which may be ascertained by reference to a standard dictionary.

6. The rule to the effect that there is a presumption that a situation once established continues until the contrary is shown has a limited signification and does not admit of general application. It applies only to the existence of a person, a personal relation, or state of things, and continues to exist as before, only until the contrary is shown or until a different presumption is raised from the nature of the subject in question.

John W. Bricker, Atty. Gen., and R. R. Zurmehly, of Columbus, for plaintiff in error. for defendant in error.

Bartholomew, Leeper & Griswold, of Cleveland, for defendant in error.

STEPHENSON, Judge.

When motions for directed verdicts were interposed by both sides, each admitted that the testimony of the other was true and that it would be considered in its most favorable light toward the party moved against. In considering the ‘ favorable light’ phase under such circumstances, we arrive at the only rational conclusion, that the ‘ favorable light’ goes out and the testimony of each of the parties litigant is considered for what it is worth.

The trial judge found that Carden had a steel shovel in his hand when he was struck by the bolt of lightning. He took judicial notice of the fact that the steel shovel was a conductor of electrical current, that Carden's work made it necessary for him to be equipped with a shovel, and that thereby his employment exposed him to a hazard greater than that experienced by the general public. It is conceded that Carden was killed by a ‘ force of nature.’

Take the syllabus in the case of Slanina v. Industrial Commission, 117 Ohio St. 329, 158 N.E. 829:

‘ In case an employee, in the discharge of the duties of his employment, is injured as a result of the unexpected violence of the forces of nature, to wit, ‘ a destructive tornado,’ where his duties do not expose him to a special or peculiar danger from the elements which caused the injury, greater than other persons in the community, such employee is not entitled to compensation under the Workmen's Compensation Act.'

Applying antithetic reasoning to this syllabus, we extract this proposition of law, that, if an employee's duties expose him to a special or peculiar danger from the elements which caused the injury, greater than other persons in the community, such employee is entitled to compensation under the Workmen's Compensation Act (Gen. Code, § 1465-37 et seq.).

The field of compensability has been appreciably enlarged within the past 18 years.

The fifth paragraph of the syllabus in the case of Fassig v. State ex rel. Turner, Atty. Gen., 95 Ohio St. 232, 116 N.E. 104 (1917), reads as follows:

‘ The provisions in section 35, article II of the Constitution, and in the statute with reference to an injury received in the course of employment refer only to an injury which is the result of or arises out of the employment. Such provisions do not cover any injury which has its cause outside of and disconnected with the employment, although the employee may at the time have been engaged in the work of his employer in the usual way.’

Under the law as stated therein, there could be no recovery in the instant case, as the lightning which caused the death was outside of, and disconnected with, the employment of Carden, notwithstanding he might have been engaged in the work of his employer when killed.

The Fassig Case, supra, was approved and followed in the case of Industrial Commission v. Weigandt, 102 Ohio St. 1, 130 N.E. 38, where it is stated in the fourth paragraph of the syllabus that:

The statute was intended to provide a speedy and inexpensive remedy as a substitute for previous unsatisfactory methods and should be liberally construed in favor of employees.’

Both the Weigandt and Fassig Cases were approved and followed in the Slanina Case, supra. Recovery was denied in the Slanina Case, 117 Ohio St. 329, 336, 158 N.E. 829, 831, in the following words:

‘ Entertaining the view that this record presents a case where the employee, even though injured while in the course of his employment, received such injury as a result of the forces of nature, and from a risk and danger to which the general public was exposed, and not peculiar to the employment, it therefore follows that there can be no recovery under the terms of the Workmen's Compensation Act.’

In the same case, 117 Ohio St. at page 333, 158 N.E. 829, the court says:

‘ The fact that the injury was caused by the act of God does not, however, necessarily deprive the injured party of the right to recover under the Workmen's Compensation Act, if the employee's duties exposed him to some special danger not common to the public.’

These two excerpts from the opinion do not constitute the law of the case, but the syllabus must be construed in the light of the reasoning gleaned from the opinion. We assume that the trial judge was conversant with the Slanina, Weigandt, and Fassig Cases, and that his version of the law, while couched in different language, is a fair statement of the law.

These cases are approved and followed in Grabler Mfg. Co. v. Wrobel, 125 Ohio St. 265, 181 N.E. 97, and Industrial Commission v. Nelson, 127 Ohio St. 41, 186 N.E. 735.

Let us consider the first and second paragraphs of the syllabus in the case of Industrial Commission v. Nelson, supra, which read as follows:

‘ 1. An injury is not compensable, under the Workmen's Compensation Law of this state, unless the employment has some causal connection with the injury, either through its activities, its...

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