Opinion
No. 22855
Decided November 25, 1931.
Workmen's compensation — Insufficient evidence of death from physical injury — Night watchman had high blood pressure and excitement caused illness.
ERROR to the Court of Appeals of Cuyahoga county.
The defendant in error, Bridget O'Malley, is the widow of John O'Malley, who, on August 23, 1928, was employed as night watchman by the Worthington Company, a contributor to the state insurance fund. Between the employer's building and another building known as the Brunswick was an alleyway about eight feet wide, commonly used by the tenants of both buildings, and closed by an iron gate. Among O'Malley's duties as night watchman was that of locking this gate at night and opening it in the morning. About 3 a. m. on the morning of above date, it was discovered that a door in the Brunswick building was open. The police appeared on the scene, O'Malley opening the alley gate and accompanying them to the rear of the alley. He immediately returned to the sidewalk in front of the Worthington building and seated himself on a chair which he had occupied just previous to the arrival of the police. A second police squad very soon thereafter appeared and found O'Malley so seated and seriously sick. Upon inquiry of O'Malley as to what was the matter, O'Malley told the police it was "the excitement of it all. * * * Well, I have high blood pressure, get me a doctor or take me to a hospital." He was taken to the hospital, and died within a few minutes after his arrival. The post mortem examination disclosed that there was no evidence of paralysis before death, and no evidence of injury; it also disclosed that there was "percussion of cardiac borders interfered with by dullness of the chest, but the heart did not appear to extend beyond the usual limits," and that death resulted from "acute pulmonary edema."
Application for compensation was made by the widow and denied by the Industrial Commission. Suit was thereupon instituted in the court of common pleas, where the defendant in error recovered a judgment in her favor. The Court of Appeals having affirmed that judgment, error was prosecuted to this court.
Mr. Gilbert Bettman, attorney general, Mr. R.R. Zurmehly and Mr. Arthur Krause, for plaintiff in error.
Mr. John V. Walsh and Mr. Frank Morton, for defendant in error.
The testimony is very brief. In the trial court, the defendant below offered no evidence, but rested upon its motion for a directed verdict at the close of the plaintiff's evidence. The only evidence relating to the cause of O'Malley's death is his own statement that he had high blood pressure, and that "the excitement of it all" was the cause of his illness. If O'Malley's death was caused by excitement merely, it was not caused by any physical injury contributing to his death. Hence the trial court erred in overruling the motion of the defendant for a directed verdict. The judgments of the courts below will therefore be reversed; and proceeding to render the judgment which the Court of Appeals should have rendered, judgment will be entered in favor of the plaintiff in error.
Judgment reversed and final judgment for plaintiff in error.
JONES, MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.
MARSHALL, C.J., not participating.