McIntyre v. Kuhns Bros. Co.

• Decision Date: 05 December 1977
• Citation: 8 O.O.3d 245,54 Ohio App.2d 131,375 N.E.2d 1264
• Parties: , 8 O.O.3d 245 McINTYRE, Appellee, v. KUHNS BROTHERS COMPANY et al., Appellants.
• Court: Ohio Court of Appeals

Page 131

54 Ohio App.2d 131

375 N.E.2d 1264, 8 O.O.3d 245

McINTYRE, Appellee, v. KUHNS BROTHERS COMPANY et al., Appellants.

Court of Appeals of Ohio, Second District, Montgomery County.

Dec. 5, 1977.

Syllabus by the Court

The duty of the court in its instructions to outline the issues and to provide the principles of law applicable to the evidence does not include comment on salient or other facts that assume the truth or arguably emphasize the claims of either party.

Where there is a single issue there can be no measurable equality as between the parties in the volume of words used in the instructions to outline and explain the law applicable to that issue.

E. S. Gallon & Associates and David A. Saphire, Dayton, for appellee William McIntyre.

Smith & Schnacke and Samuel A. McCray, Dayton, for appellant Kuhns Bros. Co.

William J. Brown, Atty. Gen., and James Weprin, Columbus, for appellant Kenneth E. Krouse, administrator, Bureau of Workmen's Compensation.

McBRIDE, Judge.

This appeal is a typical workmen's compensation case which brings out the distinction in R.C. 4123.01(C) between an injury caused by external accidental means and the amendment that added injury accidental in character and result.

The injury claimed was a compression or entrapment of the ulnar nerve at the left elbow. The plaintiff was an employee pouring molten iron in a foundry. While there is testimony of a mishap by way of a mechanical failure in a locking device while pouring that would qualify as an external accident, the thrust of the plaintiff's testimony relates to a continuous day of unexpected heavy work, faster than usual, with no rest periods and only fifteen minutes for lunch. In this context and the state of the evidence the mishap became a part of the total day's work and an unexpected event. The physical injury was not "spontaneous," as defendant argues, in that its onset was not immediate; however, the plaintiff argues that the injury was accidental in character and result even though not immediately evident.

The jury found for the plaintiff and on appeal the employer relies upon four assignments of error.

1.

For its first assignment the defendant asserts error of the court in refusing to sustain a motion to dismiss at the end of the plaintiff's case.

At this point the trial judge denied the motion on the basis of accidental means; that is, the failure of the locking device and the strain and pain produced. The medical testimony linked the causal factor to the total strain of the unusual day's work; however, while the reason expressed may have been incomplete, as the court indicated later, the issue of injury accidental in character and result was in the record and justified the dismissal of the motion.

This assignment is denied.

2.

The second assignment of error is based upon a claimed instruction that erroneously distinguished between "injury resulting from a sudden mishap or event" and "disease resulting from a gradual process extending over a long period of time."

Here we find confused rhetoric and issues. We gather from defendant's argument that it insists that the amendment to the definition of injury, adding injury accidental in character and result, requires that the result be sudden and spontaneous with some particular event and that the onset of the pain and injury be immediate, accompanying the sudden event. Such a construction defeats the purpose of the amendment by the legislature.

In this connection the defendant equates disease with a physical condition that is not sudden and spontaneous and insists that there may be no recovery for a disease. Disease is mentioned in Phillips v. Borg-Warner Corp. (1972), 32 Ohio St.2d 266, 291 N.E.2d 736, in which a crane operator suffered a disability from exposure while working outside under unfavorable weather conditions. The court held that exposure to the weather while on the job was insufficient, citing an infectious disease case. Johnson v. Indus. Comm. (1955), 164 Ohio St. 297, 130 N.E.2d 807. In the instant case the causal facts and injury are all of an industrial activity situation and relate to a nerve injury not to infection or disease. There is in fact no issue of disease before the court. Its injection is one of collateral argument. Further, the distinction involved in the case, even if reference to a disease were made, was not with sudden external accident but with the second phase of the statutory definition of injury accidental in character and result.

The appellant fails to reference this argument to testimony relating to a disease and in the absence of a request or objection on this question any possible error was waived.

This assignment is overruled.

3.

This assignment complains of a failure to properly frame the issues and instruct the jury on the salient facts upon which each litigant relied in support of its claim.

For this claim of error in failing to instruct the jury on the salient facts appellant relies upon the court's duty to outline the issues and points to his requests (4, 5 and 6) in each of which he insists that in establishing an unexpected result plaintiff must establish as a fact that at 9 p. m., on April 1, 1975, he suffered a sudden and spontaneous injury and pain contemporary with his activity at that time.

In describing the function of the trial judge in instructing the jury salient facts is a strong word reminiscent of the English system of commenting on the evidence. Salient in this context means conspicuous; outstanding; noticeable. In military terms it refers to the...