McNees v. Cincinnati St. Ry. Co.

Decision Date07 December 1949
Docket NumberNo. 31707,31707
Citation40 O.O. 318,89 N.E.2d 138,152 Ohio St. 269
Parties, 40 O.O. 318 McNEES v. CINCINNATI ST. RY. CO.
CourtOhio Supreme Court

Page 269

152 Ohio St. 269
89 N.E.2d 138, 40 O.O. 318
McNEES
v.
CINCINNATI ST. RY. CO.
No. 31707.
Supreme Court of Ohio.
Dec. 7, 1949.
As Amended on Denial of Rehearing Jan. 4, 1950.
[89 N.E.2d 140]
Syllabus by the Court

1. The answers of a jury to special interrogatories will not authorize a judgment different from that authorized by a general verdict, where such answers can be reconciled with the general verdict. Davis v. Turner, 69 Ohio St. 101, 68 N.E. 819, and Ohio Fuel Gas Co. v. Ringler, 126 Ohio St. 409, 185 N.E. 553, approved and followed.

2. Ordinarily, in order to sustain a motion for judgment notwithstanding a general verdict, the evidence received upon the trial and the facts established by admissions in the pleadings and in the record must be such that the court would have been required, upon a proper motion therefor, to direct a verdict for the party seeking such judgment. Even if, on such a motion for judgment, a court may also consider the answer of a jury to an interrogatory as establishing facts found by such answer, such motion must be overruled if the evidence, received upon the trial, and the facts, established by admissions in the pleadings and in the record and by answers of the jury to interrogatories, do not, as a matter of law, require a finding for the party making such a motion on some issue, which should have been found in his favor in order to justify a general verdict for him. In passing upon such a motion, neither the trial court, the

Page 270

Court of Appeals nor this court may weigh the evidence. Section 11601, General Code.

3. Where, on appeal from disallowance of a claim for death benefits under the Workmen's Compensation Act, a jury answers, 'Yes,' to a special interrogatory reading, 'Was the cause of Taylor McNees' death the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944' (the night of his death), such answer does not determine that there was a proximate causal relationship between McNees' employment and either his death or any compensable injury.

4. Death benefits under the Workmen's Compensation Act can be awarded only where the death was the proximate result of a compensable injury.

5. An injury is not compensable under the Workmen's Compensation Act unless it is received in the course of and arises out of the employment.

6. An injury does not arise out of the employment, within the meaning of the Workmen's Compensation Act, unless there is a proximate causal relationship between the employment and the injury.

7. Even where there is substantial evidence tending to prove that the employment was a probable cause of an injury, such evidence will not require a finding, as a matter of law, that there was a proximate causal relationship between the employment and the injury where there is other substantial evidence tending to prove that something apart from the employment could have caused the injury. In such an instance the question of whether there was a proximate causal relationship between the employment and the injury remains one for the jury.

The plaintiff, the widow of the decedent workman, filed a claim for death benefits under the Workmen's Compensation Act, against defendant, a self-insurer. The claim was disallowed by the Industrial Commission on original hearing and on rehearing.

Page 271

An appeal was filed in the Common Pleas Court of Hamilton County pursuant to Section 1465-90, General Code. The case was tried to a jury. The jury returned a general verdict for defendant finding that plaintiff was not entitled to benefits under the Workmen's Compensation Act, Gen.Code, § 1465-37 et seq. In addition, the jury answered, 'Yes,' to a certain interrogatory which had been submitted to it. Thereafter, the court granted plaintiff's amended motion for a judgment notwithstanding the verdict.

Defendant appealed to the Court of Appeals. That court affirmed the judgment of the Common Pleas Court.

The case is before this court on appeal from the judgment of the Court of Appeals, a motion to certify having been allowed.

C. R. Beirne, Cincinnati, for appellant.

[89 N.E.2d 141] Hoover, Beall, Whitman & Eichel, Cincinnati, for appellee.

TAFT, Judge.

In her petition, plaintiff alleged that on January 17, 1944, her husband was an employee of the defendant and engaged in operating one of its trolley busses, and that he sustained an injury in the course of that employment 'when he was subjected to unusual physical and nervous strain through the necessity of driving his bus through an extraordinarily heavy fog.' It was further alleged that this 'unusual strain' produced a coronary thrombosis and resulted in his almost immediate death.

By its answer, defendant admitted decedent's death on the date alleged but denied that such death 'was in any way connected with the decedent's employment' and 'that the decedent sustained any injury * * * within the meaning of the Workmen's Compensation Act.'

Page 272

The special interrogatory, which the jury answered in the affirmative, reads as follows:

'Was the cause of Taylor McNees' death, the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944.'

Answers of a jury to special interrogatories will not authorize a judgment different from that authorized by the general verdict, if such answers can be reconciled with the general verdict. Davis v. Turner, 69 Ohio St. 101, 68 N.E. 819; Ohio Fuel Gas Co. v. Ringler, 126 Ohio St. 409, 185 N.E. 553.

It should be observed that plaintiff's amended motion for judgment notwithstanding the verdict is based upon the ground that the evidence and the answer of the jury to the interrogatory require such judgment. Apparently, plaintiff's purpose was to rely upon Section 11420-18, General Code, providing that 'When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly' and, also, on Section 11601, General Code, 116 Ohio Laws, 413, authorizing the court to render judgment notwithstanding the verdict, where, not only upon the statements in the pleadings but also 'upon the evidence received upon the trial' a party is entitled by law to judgment in his favor, 'whether or not motion to direct verdict may have been made or overruled.'

Ordinarily, in order to sustain a motion for judgment notwithstanding a general verdict, the evidence received upon the trial and the facts established by admissions in the pleadings and in the record, must be such that the court would have been required, upon a proper motion therefor, to direct a verdict for the party seeking such judgment. Even if, on such a motion for judgment, a court may also consider the answer

Page 273

of a jury to an interrogatory as establishing facts found by such answer, such motion must be overruled if the evidence, received upon the trial, and the facts, established by admissions in the pleadings and in the record and by answers of the jury to interrogatories, do not, as a matter of law, require a finding for the party making such a motion on some issue, which should have been found in his favor in order to justify a general verdict for him. In passing upon such a motion, neither the trial court, the Court of Appeals nor this court may weigh the evidence. Section 11601, General Code.

By the words of Section 35, Article II of the Constitution, the General Assembly is authorized to provide compensation to workmen and their dependants for 'death, injuries or occupational disease, occasioned in the course of * * * employment.' The instant case does not involve provisions made with respect to occupational disease. With respect to death and injuries, the General Assembly provided that compensation is to be awarded only if the employee was 'injured' or 'killed in the course of employment.' Section 1465-68, General Code. However, the only provision for payment of compensation for death is for those instances in which a compensable injury caused death. Section 1465-82, General Code.

Plaintiff must therefore contend that decedent was 'injured * * * in [89 N.E.2d 142] the course of employment,' and that such injury was the cause of his death.

Nothing in the jury's answer to the interrogatory indicates that the 'mental strain and excitement of the driving conditions' represented any injury to McNees. It might be argued that the term 'any injury' might be interpreted to include the word 'strain.' However, such an argument with respect to the word 'excitement' would appear to be clearly unreasonable.

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If we assume that a mental strain could be an injury, then we have that injury and something which could not reasonably be interpreted as an injury, i. e., the excitement, as the cause of death.

When we turn to the evidence, we find no dispute as to the fact that decedent's death was caused by coronary thrombosis. If a coronary thrombosis, caused as this one was, could be included within the term 'any injury,' which we do not decide, the question would still remain whether it would be here included within the term 'injury' as defined in the last paragraph of Section 1465-68, General Code.

That section provides that 'the term 'injury' * * * shall include any injury received in the course of, and arising out of, the injured employee's employment.' (Emphasis ours.)

Since the jury's answer to the special interrogatory finds a causal connection between decedent's death and the strain and excitement of certain conditions of his employment, it necessarily establishes a causal connection between his employment and the coronary thrombosis. This follows because there is no dispute in the evidence as to the fact that coronary thrombosis was the proximate cause of death. When it refers to 'the cause of Taylor McNees' death,' the jury's answer to the special interrogatory negatives the existence of...

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