(148 N.E.)

for some months, when the insurance company which was paying him compensation demanded that he go, at the company's expense, to a hospital in St. Louis, and he was taken there in January, 1920, and died there February 7, following. The hospital records did not sustain the testimony of the doctors as to the treatment given the employee. One of his injuries was a contused knee, but there was no fracture. The doctors claimed they put the knee in a cast. The hospital records did not show that but showed weights were attached to the leg, treatment by baking and massage, and by many kinds of drugs. He suffered great pain. A son of Kivish testified, without objection, he visited his father in the hospital when he was dying; that, there were doctors around him, and his father said, "I am gone; they killed me." The doctors testified he developed influenza January 27, and died from it February 7. The doctors who treated Kivish in the hos

such a case the permanent disability is due to the refusal to submit to the operation and not to the injury; that if the employee is required to submit to an operation the employer is liable for the expense, and if not successful he is liable for whatever permanent disability remains, and also for surgical and hospital bills. If the operation is successful the employer is liable for the employee's loss of time and surgical and hospital expenses. That decision was not based entirely upon the letter of the statute but was the construction given the act to carry out its purpose. The same may be said of Joliet Motor Co. v. Industrial Board, 280 Ill. 148, 117 N. E. 423. We considered in Hammond Co. v. Industrial Com., 288 Ill. 262, 123 N. E. 384, the case of an employee who was injured in November, 1914. The injury caused an abscess to form on his leg and required surgical and hospital treatment. The abscess was opened, the pus drawn out, and an opertion was performed on the bone, which weak-pital testified his knee was well at the time ened it. Months afterwards he fell while getting out of bed in the hospital and broke his leg at the place where it had been weakened by the operation. Severe hemorrhage resulted from the fracture, and another operation was performed in September, 1915, nearly a year after the original injury. The employee died a few hours thereafter from hemorrhage and shock. The employer contended the death was not due to the original accidental injury but was due to an intervening cause. The court said:

"But plaintiff in error contends Bonkowski's death did not result from that injury but was due to his fall in the hospital, which intervened between the accident received where he was employed and the death. The testimony of the physician who treated Bonkowski was, in substance, that the abscess on his thigh was caused by an external injury; that the pus which had formed had eaten through and destroyed the tissue and blood vessels and attacked the bone, which necessitated curetting and chiseling away a part of the bone. This weakened the bone, and while getting out of bed the limb gave away, Bonkowski fell to the floor and the femur broke at the place it was eaten by disease. He was operated on six days later and died from the shock the same day. The Industrial Commission was warranted by the proof in finding death resulted from the injury."

In Bailey v. Industrial Com., 286 Ill. 623, 122 N. E. 107, an employee suffered a fracture of the leg. After he had partially recovered, while walking on the sidewalk he fell and again broke his leg at the same place. The court said whether the injury was the result of an independent intervening cause was a question of fact, which was settled by the decision of the Industrial Commis

sion.

In Kivish v. Industrial Com., 312 Ill. 311, 143 N. E. 860, the employee received an accidental injury April, 1919. He was treated 148 N.E.-6

he developed influenza and he was walking about in the ward, and his death was caused by influenza-pneumonia. While the question here presented was not directly involved in that case, what the court said is pertinent as showing what the court's views were. The court said:

severely injured in the line of his employment "Two things are certain: One, that he was and that he never recovered from those injuries; and the other, that he went to the hospital for treatment in compliance with the demands of the insurance company which was paying the compensation due the injured employee from his employer. We have held that while the employee must submit to proper treatment at the request of the employer or forfeit his right to compensation, the employer is, on the other hand, liable for the consequences of a surgical operation to which the injured employee submits in compliance with the employer's demand."

It has been held by courts of other states that where a weakened condition of the employee is caused by an accidental injury and death results from some disease developed later, such as bronchitis, erysipelas, influenza, blood poison, bed sores caused by long confinement in bed, and the like, death will be attributed to the injury. Burns' Case, 218 Mass. 8, 105 N. E. 601.

Plaintiff in error cites a decision of the

Supreme Court of Oklahoma (Booth & Flinn

v. Cook, 79 Okl. 280, 193 Pac. 36) where the court said:

"We are aware that, in negligence cases not arising under compensation acts, many courts hold that the master's liability ceases when he exercises reasonable care in selecting competent physicians or surgeons. But workmen's compensation acts are a departure from cases of liability resulting from negligence, and fix specific amounts of recovery for specific results of accidents. To deny recovery for the

ultimate result of the accident where the disability has been increased by the intervening negligence or carelessness of the employer's selected physician would be to defeat one of the purposes of the act."

so related to, and connected with, the injury as to authorize an award of compensation. We do not overlook the contention of the defendant in error that the proceeding is for compensation for a recurrence or increase of the disability resulting from the accident of Defendant in error refers to cases in which February, 1921. In cases to which we have the statement was made that the employer referred, this and other courts have held that was not liable under the Workmen's Compen- where there was an injury which lowered sation Act for malpractice of the doctor or so and weakened the vitality of the employee, much of the employee's incapacity as results and an independent disease was contracted from negligence or lack of skill in medical which caused death, it would be attributed treatment. The Supreme Court of Wiscon- to the injury and not to the disease. If those sin beld in Pawlak v. Hayes, 162 Wis. 503, decisions are sound-and we certainly be156 N. W. 464, L. R. A. 1917A, 392, that the em-lieve they are-the construction is warrantployee had a choice of remedies. He could ed that defendant in error is liable to pay hold the employer liable under the Workmen's Compensation Act or he could hold the doctor liable. The Supreme Court of Minnesota held otherwise in Viita v. Fleming, 132 Minn. 128, 155 N. W. 1077, L. R. A. 1916D, 644, Ann. Cas. 1917E, 678. What-injury of February, 1921, the proof shows ever courts of other states may have decided to be of value as precedents for our guidance the questions decided must have been like the one here involved, and must have arisen under a statute substantially like ours. Counsel for defendant in error admit they have been unable to find any such decisions and we know of none.

compensation in this case. The conclusion is warranted that plaintiff in error had not recovered from the incapacity caused by the injury when the examination was made, and whatever disability he then suffered from the

was greatly increased by the burn.

Plaintiff in error admits there were included in the award made by the Industrial Commission for medical and hospital services, items in excess of what the law and facts warranted, and that the correct amount allowed for that purpose should have been $254.35, and that is not denied by defendant in error if an award is authorized by law.

The judgment of the circuit court will be reversed, and the award of the Industrial Commission, after deducting $128.40 from the award for medical and hospital services, will be affirmed as thus modified. Judgment reversed.

Award modified and affirmed.

CLEVELAND-AKRON BAG CO. v. JAITE. (No. 18650.)

(Supreme Court of Ohio. May 18, 1925.)

(Syllabus by the Court.)

[2] We believe it was never contemplated that the statute should authorize the employer to compel an examination by a doctor selected by the employer to determine whether the employee is suffering any incapacity from an injury for which the employer is admittedly liable, and if the doctor making the examination, through negligence or lack of skill, inflicts an injury which causes disability, the employer should not be liable under the statute. The voluntary payment by defendant in error, upon the report of the examination, of $200, is an admission that the plaintiff in error was suffering some incapacity from the injury of February, 1921, and was not attempting a fraud or imposition upon defendant in error. Our own decisions to which we have referred extend liability to pay compensation beyond the direct effects of the injury, and that seems necessarily to result from the construction that under the statute the employee is compelled, at the demand of the employer, to submit to an examination by the employer's physician or forfeit compensation, and where an operation offers a reasonable prospect of relief from incapacity and is not attended with danger to life, health, or extraordinary suf-2. Trial 304-Request of juror on way to fering, the employee must submit to an operation or release the employer from paying him compensation. Mt. Olive Coal Co. v. Industrial Com., supra. Inasmuch as the injury for which plaintiff in error is seeking compensation would not have occurred except for the examination required to be made by the employer, we are of the opinion it is

1. Negligence 134(1)-Proof must rest on rational inference from facts and circumstances.

If proof of a material fact necessary to establish negligence rests upon an inference only, the inference must be a rational one, such as could be reasonably arrived at from the facts and circumstances testified to.

jury box to see plaintiff's injured hand held not of itself cause for mistrial.

The mere fact that a juror, while on her way to the jury box, asked to see the injured hand of a plaintiff, which had theretofore been exhibited to the jury and the character of the injuries thereto fully testified to, is not of itself cause for a mistrial.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Staff.]

(148 N.E.)

In the court of common pleas an infant, 8 years of age, bringing this action by his next friend, recovered a judgment for personal injuries. The judgment was affirmed by the Court of Appeals, whereupon plaintiff in error instituted proceedings in error in this court. For the purpose of this case Jaite, the infant, will be treated as plaintiff, and the Bag Company as defendant.

Error to Court of Appeals, Summit County., about equally with his brother; and that Action by Earl E. Jaite, an infant, by his while attempting to open one of these caps next friend, against the Cleveland-Akron with a club an explosion occurred seriously Bag Company. Judgment for plaintiff was injuring plaintiff. Testimony was also inaffirmed by the Court of Appeals and defend- troduced on behalf of the plaintiff tending ant brings error. Affirmed. [By Editorial to show that numerous bales of paper were brought into the mill for the purpose of manufacturing paper; that these bales consisted largely of paper, but frequently contained a great many foreign substances, including even bullets and cartridges; that, while smaller substances often passed through the beating machines of the mill, these were generally discovered before the operation, and thrown among the floor sweepings, and later gathered into tin receptacles or bleach cans, which, together with the accumulated waste of the plant, were in numerous instances thereafter hauled from the mill and dumped by an employé of the defendant upon the premises adjoining the highway where this injury occurred. The boy testified that on this occasion he saw corsets, wire, and bleach cans contained in the same load of rubbish that was hauled by said employé and dumped at the place where he picked up the box.

In his petition the plaintiff alleged that, in its various operations about its own premises, the defendant had occasion to and did use quantities of dynamite and caps or torpedoes for its explosion; that in the course of its operations caps or torpedoes, filled with explosive substances for exploding dynamite, were taken upon its premises and suffered to remain there; that they were later negligently hauled in a load of rubbish by one of the defendant's employés and dumped by him on a part of the highway used and traveled by the public; that, included in one of the loads of rubbish dumped on the highway was a box containing 29 of such caps or torpedoes filled with an explosive substance; and that this box of caps or torpedoes attracted the attention of the infant, who, without knowledge of and in ignorance of its dangerous character, picked up the box from the highway, and later, in attempting to open one of the caps therein, sustained

serious injuries.

While the employé in question denied having dumped any rubbish near the highway upon the day the boy was injured, the boy testified positively that that employé did dump this load of rubbish in the highway about 15 minutes before he picked up the box of explosives.

The charge of misconduct upon the part of a juror, relied on by counsel for plaintiff in error, arose from the following incident: The verdict in favor of the plaintiff was signed by 9 jurors, one of whom was Mrs. Anna Meek. During the progress of the The defendant answered, denying general- trial, and in the courtroom, while this juror ly the allegations of the petition, and averwas proceeding to the jury box, she encounring that the caps or torpedoes were deposit-tered the mother of the injured plaintiff. The ed by some person unknown to the defendant mother had a 7 weeks old baby in her arms. and without its authority. The answer fur- The juror asked about the baby, and while ther alleged that plaintiff's injuries were talking about it the plaintiff stepped up to caused solely by his own negligence. the side of his mother. Mrs. Meek then said

Upon the trial, the testimony elicited on behalf of the infant plaintiff tended to show that on the day of the injury he left his home near the scene of the accident for the purpose of obtaining family groceries; that on his way to the general store, while traveling down Cemetery road, the infant observed an employé of the defendant dumping rubbish in the road aforesaid; that 15 or 20 minutes thereafter, having obtained the family groceries; and while traveling homeward along Cemetery road, he observed in the wagon track of the road, and at the point where the employé dumped the rubbish from the mill, a greenish box, about 3 inches square, and containing 29 caps or torpedoes; that he also found in the road near the same point a knife sharpener and a spoon; that the infant took these articles to his home nearby and divided the caps or torpedoes

This evidence

to the injured boy, "May I see your hand
again?" She then took his hand and said,
"He has two fingers," and the plaintiff's
mother answered: "Yes; but they wanted
to take that piece off at the hospital and I
refused." After this conversation Mrs. Meek
proceeded to the jury box.
was given by the mother; Mrs. Meek was
not called. The plaintiff testified that at
the time his mother said, "Isn't it too bad,"
but the mother denied the use of that ex-
pression. The record discloses that previous
to that time the plaintiff had exhibited his
hand to the jury. There are other errors
urged, but they will be alluded to in the opin-

ion.

Musser, Kimber & Huffman, of Akron, for plaintiff in error.

Rockwell & Grant, of Akron, for defendant in error.

JONES, J. [1] At the close of the plaintiff's evidence the defendant moved for a directed verdict. The motion was overruled. A similar motion was made at the close of the entire evidence, and that motion was also overruled. The defendant company maintains that there was no evidence tending to prove negligence on its part, and that error intervened in the overruling of these motions for nonsuit. Counsel opposing the direction of a nonsuit rely upon what they term a "scintilla" of evidence to support their case. It would be well to discard the use of that term and employ the more common-sense rule announced by this court in many cases during the last half century. The textbooks uniformly declare that the scintilla rule has been abandoned by most of the courts. One of the principal lexicographers defines the term "scintilla" as an iota, a tittle, a glimmer or a trace; another, that it is a "minute particle, an atom." A pursuit of these shadowy definitions may sometimes lead into the realm of speculation or conjecture, or into a verdict based on mere possibilities. This no court permits. An eminent member of this court realized this. In Nelson Business College Co. v. Lloyd, 60 Ohio St. 448, 54 N. E. 471, 46 L. R. A. 314, 71 Am. St. Rep. 729, at page 459, 54 N. E. 473, Minshall, J., said: "The so-called 'scintilla rule,' frequently applied as a stigma to the practice that requires the case to be submitted to the jury when there is any evidence to support the plaintiff's case, is better calculated to confuse than enlighten the mind." Italics ours.

In view of the extremely obscure definitions of the term it is highly proper that this court should announce a rule for the

guidance of the trial and appellate courts.

It is well known that in Ohio the syllabus is the law of the case. However, with a single exception, to which we will hereafter refer, the term "scintilla" has never appeared in our syllabi. In commenting upon the term, one of our textbooks thus alludes to it:

"There was an old phrase that 'a mere scintilla of evidence' was sufficient; but this has been abandoned by most courts." 5 Wigmore's Evidence (2d Ed.) 2494.

Another speaks of the rule as follows: "The scintilla rule itself has now been exploded in most jurisdictions." 26 Ruling Case Law, 1070. In the recent case of A. B. Small Co. v. Lamborn & Co., 267 U. S. 248, 45 S. C. 300,, decided March 2, 1925, Mr. Justice Van Devanter, delivering the unanimous opinion of the United States Supreme Court, said of the phrase now under discussion:

"The view that a scintilla or modicum of conflicting evidence, irrespective of the character and measure of that to which it is opposed, necessarily requires a submission to the jury has met with express disapproval in this jurisdiction, as in many others."

The Ohio case to which we have referred, and which has employed this shadowy and illusive term beyond reasonable lengths, is Clark v. McFarland, 99 Ohio St. 100, 124 N. E. 164. That was a case involving a contest of a probated will. The statute, the legislative mandate, had made the order of probate prima facie evidence of the will's execution and validity. Yet, notwithstanding that fact, this court applied the scintilla rule to that case. It thus made a scintilla Overcome prima facie evidence, which the Legislature had stipulated should attach to the order of probate.

Mr. Edson R. Sunderland, of the law school of the University of Michigan, in a comprehensive article dealing with the scintilla

er alluding to the fact that it was seldom followed by the modern courts, said:

It is obvious from the numerous cases appearing in this court that there is no stand-rule, 18 Michigan Law Review, page 46, aftard employed by the trial courts whereby a nonsuit may be directed. Everyone will conIcede that there is a division line between the functions of the court and jury; and there is no reason why such a standard should not apply to criminal as well as civil cases. Surely, in the former, no court should permit a case to be submitted to the jury if the state should rely upon merely a tittle, a glimmer, a minute particle, or an atom of evidence in support of the guilt of the accused. Upon this phase of the case the rule should be that evidence tendered upon every material fact necessary to be proven should not only be substantial in character, but should have a substantial probative value, supplying proof of such fact. If the fact relied upon has neither substantial weight nor value, and proof thereof is necessary, it is the court's function to so declare.

"Such being the principle underlying the scintilla rule and the state of the law regarding it, it is rather interesting and surprising to find the Supreme Court of Ohio, in an opinion published in September of the present year, standing pat on the scintilla rule in its crudest form. In Clark v. McFarland (Ohio, 1918) it appeared that a will had been admitted to probate by the order of the proper court. This order was by statute declared to be prima facie evidence of the due execution and validity of the will. * On appeal the judgment was reversed on the ground that a mere scintilla of evidence was enough to send the case to the jury even in the face of an order of probate declared by statute to be prima facie proof of validity."

Adverting to the fact that this court, by that decision, reversed the two prior deci