#### Tipple, Appellee, *v.*The High Street Hotel Co., Appellant.

(No. 3369

Decided October 3, 1941.)

*398
      *Mr. Hugh Huntington*and *Mr. Angus M. Holmes,*for appellee.

*Messrs. Vorys, Setter, Seymour $ Pease,*for appellant.

Geiger, P. J.

This matter is before this court on appeal by the defendant below from a judgment of the Court of Common Pleas awarding damages in the sum of $2,500 in favor of the plaintiff. The appeal is on questions of law.

The amended petition states in substance that the defendant is engaged, among other things, in doing a general hotel-restaurant catering business; that as a part of its business it operates a public restaurant in the Chittenden Hotel in the city of Columbus and there serves and sells food for human consumption to patrons and holds itself out as dispensing pure and wholesome food.

As a first cause of action it is stated that on or about June 30, 1939, the plaintiff entered defendant’s restaurant and ordered a meal consisting of waffles, sausages and coffee; that the defendant by its agents sold and served to the plaintiff poisoned and unwholesome sausages, unfit for human consumption and injurious to the health of persons eating thereof; that the plaintiff ate the sausages and as a result be.came violently ill; and that the defendant was negligent, as follows:

(1) In selling and serving to plaintiff for consumption the food which was tainted and unfit for human consumption.

(2) In failing to properly cook such food.

(3) In failing to discover the tainted condition before serving the food to plaintiff.

(4) In failing to properly inspect the food before serving.

*399The eight assignments of error may be summarized to the effect that the court erred in overruling defendant’s motion for a directed verdict; that the court erred in refusing to submit the defendant’s second defense; that the court erred in refusing to give the charges requested; that the verdict is excessive; that the court erred in awarding interest on the judgment from the date of the verdict rather than from the entry of the judgment; that the court erred in its general charge; and that the verdict was against the weight of the evidence.

There is not a great deal of controversy as to certain of the facts in this case and they may be briefly summarized to the effect that the plaintiff was employed to work eight hours a day in charge of the defendant’s cigar stand; that for one week the time of her employment was from 7:00 a. m. to 3:00 p. m. and the next week, from 3:00 p. m. to 11:00 p. m., she being off one day a week. In the course of her employment she was furnished money by the defendant to run her shift at the stand during which time she was personally responsible. She had no specific time off for her meals and no person was detailed to relieve her. She had the right to make such arrangements as she could with other employees while she went to the rest room or to lunch. Near the cigar stand there was operated by the defendant a restaurant where employees, including the plaintiff, were given a 40 per cent discount on meals and were permitted to sign the food checks as against their salary. Plaintiff, between the date of her employment and the date upon which it was alleged she was poisoned by the food, frequently ate at the restaurant of the defendant, but was under no contract or obligation to eat there. She was perfectly free to secure her meals wherever she might desire, either at the defendant’s restaurant or at ad*400jacent places where food was served. She availed herself of both services. When eating at the defendant’s restaurant she usually sought a table from which she could keep the cigar stand under observation and frequently returned from her table to wait upon customers. On the day in question her shift began at 7:00 a. m. At noon she could find no one to relieve her and did not find an opportunity to go into the restaurant until 1:30, where she ordered the meal consisting of sausage, waffles, syrup, butter, and coffee, the sausages being broiled. During the course of her meal she observed customers at her unattended cigar stand and picked up her lunch, took it to the cigar stand and, after waiting upon customers, finished it as she worked. She left the hotel about 3:15 p. m. for her own residence and soon after arriving there was seized with sharp pains in the abdomen followed by nausea and vomiting. A doctor was called and was in attendance upon her daily for five or six days and thereafter less frequently. The doctor testified in detail as to her sickness and symptoms and positively stated that in his judgment her illness was caused by food poisoning taken into her system by way of the sausages she ate at the meal in question.

After the plaintiff had introduced her evidence and the court had overruled motion for directed verdict the defendant introduced the evidence of various witnesses. Their testimony covered in detail the process by which the sausages were produced and the method of distribution and the care between the time the same were delivered and were served to customers, including in detail the method of refrigeration. There was also evidence of the cook who prepared the sausages for consumption.

The defendant also introduced expert testimony dealing with the various forms of food poisoning and *401the bacteria present in food which may or may not be harmful. It was testified that most of the harmful bacteria are destroyed by heating to a temperature beyond the boiling point of water, and that broiling produces a heat higher than the boiling point of water.

The testimony of physicians was also introduced to the effect that the sickness described did not, as a matter of fact arise from food poisoning, but was acute indigestion caused by error in diet and the fact that the meal consumed contained an excessive amount of fat, and that the plaintiff at the time she took the same was exhausted by her prior service at the cigar counter.

As above shown, the plaintiff produced evidence of her illness and the evidence of her attending physician and other medical testimony to the effect that her illness was caused by food poisoning through the instrumentality of the sausages.

The first question is whether the plaintiff may recover against the defendant as a result of the damage arising from the sale of unfit food. This question is affirmatively determined by the case of *Great A. & P. Tea Co.*v. *Hughes,*131 Ohio St., 501, 3 N. E. (2d), 415; *Yochem*v. *Gloria, Inc.,*134 Ohio St., 427, 17 N. E. (2d), 731.

There is an assignment of error to the effect that the verdict is excessive. We find no merit in this as the plaintiff was seriously ill and has shown that she suffered a permanent injury.

This disposes of the first, second, fifth and eighth assignments of error.

We now approach the novel and difficult question xaised by the second defense which we briefly restate; that on the date in question the defendant employed more than three persons about its place of business *402and was a contributor to tbe workmen’s compensation fund, and had complied witb tbe compensation laws of tbe state, and that at tbe time tbe plaintiff ordered and ate tbe meal sbe was in tbe employ of tbe defendant and ber acts were done by reason of such employment in tbe course of and in tbe scope of tbe employment. Tbis defense is urged witb great skill by tbe defendant, it being contended that inasmuch as ber employment required ber to be in charge of tbe cigar stand from seven in tbe morning to three in tbe afternoon, inasmuch as sbe was then responsible for its operation as well as for tbe money incident to such business, inasmuch as it was necessary for ber to take ber meals at such place as would give ber a continual supervision of tbe cigar stand, and inasmuch as part of ber compensation consisted of a rebate of 40 per cent of tbe sale price of tbe food, that sbe, at tbe time of ber injury, was an employee under contract for hire within tbe purview of Section 1465-61, General Code, that ber injury resulted from tbe work sbe was employed to perform, and that ber injury was received while sbe was engaged in tbe business of her employer and in tbe furtherance of tbe latter’s affairs.

We have bad occasion to examine many cases touching workmen’s compensation, but we do not recall having come in contact witb any pertinent case where such a defense is made. The cases are usually tbe reverse of tbis in that tbe Industrial Commission defends an action in which it is sought to establish a claim by an injured workman.

However, it can be readily understood that if tbis lady has a just claim which can be maintained against tbe Industrial Commission, then she would have no right to recover from tbe defendant in tbis case, but must resort to the provisions of tbe statute covering workmen’s compensation.

*403Section 35, Article II of the Constitution, provides that for the purpose of providing compensation to workmen for death or injuries *occasioned in the course of such worhmen’s employment,*laws may be passed establishing a state fund. This section also provides:

“Such compensation shall be in lieu of all other rights to compensation, or. damages, # * * and any employer who pays the premium or compensation provided by law * * * shall not be liable to respond in damages at common law or by statute for such * * * injuries * *

The issue then is: Was the injury which the plaintiff suffered by reason of eating the sausage occasioned in the course of her employment?

“In order to recover compensation under the workmen’s compensation law it is essential not only that the relation of employer and employee must exist, but the injured employee is also required to show that his injuries resulted from the work he was employed to perform, and that such injuries were received while engaged in- the business of his employer and in the furtherance of the latter’s affairs.” *Industrial Commission*v. *Bateman,*126 Ohio St., 279, 283, 185 N. E., 50.

In the second paragraph of the syllabus in the above case, it is stated:

‘ ‘ Such injuries must be connected with the operation •of the employer’s business, * ** **or # * * the employee, acting within the scope of his employment, must, at the time of his injury, have been engaged in the promotion of his employer’s business and in the furtherance of his affairs.”

It must be shown that the injury was occasioned in the course of employment.

The question which is made the burden of the brief of counsel is whether the injury is compensable as be*404ing within the constitutional and legislative definitions of compensable injuries.

We will not labor the question as to whether, if the injury suffered by the plaintiff was caused by the eating of the sausage, it is a compensable “injury.” In our judgment the authorities amply sustain this posisition and have so recently been cited that we will not repeat them. We are cited to the case of *Industrial Commission*v. *Cross,*104 Ohio St., 561, 136 N. E., 283, as bearing upon this point, but we readily distinguish differences.

Section 35, Article II, as already pointed out contains the provision:

“For the purpose of providing compensation to workmen and their dependents, for *death, injuries or occupational disease, occasioned in the course of such workmen’s employment,*laws may be passed,” etc. (Italics ours.)

Section 1465-72, G-eneral Code, provides that the-board shall distribute the fund to the employees “who have been injured in the course of their employment.”'

We will not give attention to or comment upon any case decided by any court other than those in Ohio, as we think Ohio cases are ample. We must keep the-facts well in mind. The plaintiff was employed for a specific service. She had full authority to take her lunch anywhere she might desire. A certain concession was made to her by giving her a discount which led to lunching more frequently at the hotel than at other points. This also gave her an opportunity to watch the cigar stand, although she could and did call upon other employees to help her in this duty when she was not in direct attendance. It appears that she-was alert and quick to go to the stand to accommodate the customers of her employer. This situation, we think, is covered by the ruling of the court in *Indus*
      *405
      *trial Commission v. Ahern,*119 Ohio St., 41, 162 N. E., 272, 59 A. L. R., 367, where it is held in the syllabus:

“1. No custom * * * adopted by an employer, will be permitted to place an employee in his employment, if no employment in fact existed at the time of the injury, or if such custom * * * materially changes the ordinary and commonly accepted meaning of the phrase ‘in the course of employment.’

“2. * * * ‘in the course of employment,’ connotes an injury sustained in the performance of some required duty done directly or incidentally in the service of the employer.

“3. An employee who is injured when engaged, not in the service of an employer, but in pursuance of the employee’s private and personal business, disconnected with the. employment, is not entitled to compensation under the workmen’s compensation law.”

An early case was that of *Fassig*v. *State, ex rel. Turner, Atty. Genl.,*95 Ohio St., 232, 116 N. E., 104, decided in 1917. The fifth paragraph of the syllabus is to the effect that the provisions of the Constitution and the statute with reference to an injury received in the course of employment refer only to the 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. Judge Johnson, delivering the opinion of the court, on page 247, states:

“It was plainly the intention of the framers of the amendment, and of the statute, to provide for compensation only to one whose injury was the result of or connected with the employment, and would not cover any ease which had its cause outside of and disconnected with the employment, although the employee *406may at the time have been actually engaged in doing the work of his employer in the usual way.”

In *Conrad, Admx.,*v. *Youghiogheny & Ohio Coal Co.,*107 Ohio St., 387, 140 N. E., 482, 36 A. L. R., 1288, the first paragraph of the syllabus is to the effect that the act does not apply to employees who may be injured after the termination of their daily employment or when, at the time of the injury, the relationship of employer and employee has ceased to exist. Citing *Industrial Commission*v. *Weigandt,*102 Ohio St., 1, 130 N. E., 38, and *Zilch*v. *Bomgardner,*91 Ohio St., 205, 110 N. E., 459.

In *Industrial Commission*v. *Nelson,*127 Ohio St., 41, 186 N. E., 735, it was held that an injury is not ■compensable unless the employment has some causal ■connection with the injury either through its activities, its conditions or its environment, but whenever the conditions attached to the place of employment are factors in causing the injury, such injury arises out of the employment and is compensable.

In *Graulty*v. *Indihstrial Commission,*137 Ohio St., 341, 30 N. E. (2d), 337, it was held that in a compensation case it is not error for the court to enter judgment for the defendant at the close of plaintiff’s evidence if the facts established and every inference reasonably deducible therefrom construed most strongly in favor ■of the plaintiff do not tend to show that the employee received his injuries in the course of his employment.

In *Industrial Commission*v. *Davison,*118 Ohio St., 180, 160 N. E., 693, it was held that an employee is in the course of his employment while he is performing the obligation of his contract of employment. An act done while in the course of his employment, *which act is appropriate*and helpful to the accomplishment of the purpose of his employment, and resulting *407in an accident, is a hazard of such employment. This was quite an unusual case, but it must be admitted that the statement in the third paragraph of the syllabus has a rather broad implication.

The case of *Industrial Commission*v. *Henry,*124 Ohio St., 616, 180 N. E., 194, gives us some concern although we think it is clearly distinguishable.

This court has passed upon a number of these cases touching the question as to whether the injury arose during the course of employment.

One of these is *Frame*v. *Industrial Commission,*30 Ohio Law Abs., 362, opinion by Judge Barnes, wherein the “going to or from work rule” is examined in view of the Ohio decisions.

The latest case decided by this court is that of *Ryan*v. *Industrial Commission,*34 Ohio Law Abs., 181, 36 N. E. (2d), 483, decided April 30, 1941, opinion by Geiger, P. J. It is there held that a charge that unless the jury find that the plaintiff at the time and place of her injury was in the performance of some required act done directly or indirectly in the service of her employer, the verdict must be for the commission, is not error prejudicial to claimant. This case was one in which an employee, during a morning lull in the work in which forty employees were engaged, left the place of her employment, to go to a restaurant to obtain refreshments and during her egress from the building slipped upon a stairway and was injured. The court held that this was in the pursuance of a private purpose wholly disconnected with the duties of her employment and she was not entitled to workmen’s compensation. This case reviews many of the cases, some of which are borderline cases upon the question now engaging our attention and it would be an un*408profitable expenditure of time to repeat the authorities there discussed. *Taylor*v. *Industrial Commission,*13 Ohio App., 262, is a case of interest and cited as of weight.

We are of the opinion that the plaintiff would not have been entitled to recover had she begun a proceeding against the Industrial Commission, for the reason that her accident did not arise out of her employment. The court committed no error in refusing to charge as requested by the defendant to the effect that plaintiff had a right of action against the Industrial Commission and no right against the defendant.

This disposes of assignments 3, 4, and 7.

This leaves the single assignment to the effect that the court erred in awarding interest from the date of the verdict rather than from the date of the judgment.

We are of the opinion that in this matter there was error, and that the interest should be computed from the day of judgment and not from the day of the verdict, and this is directed to be done.

With this exception the judgment of the court below is affirmed.

*Judgment affirmed as modified.*

Hornbeck and Barnes, JJ., concur.