#### Burnett, Appellee, *v.*Industrial Commission of Ohio, Appellant.

(No. 510

Decided November 1, 1949.)

*Mr. Paul L. Birt*and *Mr. L. B. Cousineau,*for appellee.

*Mr. Herbert 8. Duffy,*attorney general, *Mr. T. Vincent Martin*and *Mr. Hugh P. Brennan,*for appellant.

Hornbeck, J.

This appeal on questions of law is from a judgment on a verdict of a jury in favor of the plaintiff, holding that she, as the widow of James 1. Burnett, deceased, was entitled to share in the state insurance fund as provided by the Workmen’s Compensation Act.

Plaintiff’s decedent, while in the employ of the Hurst Sand & Gravel Company of Dayton, Ohio, a contributor to the state insurance fund, was injured on May 22,1943, in the course of his employment. Thereafter he' fatally shot himself, and it was the claim of the plaintiff that his death was the result of an involuntary act committed in a deranged state of mind, the result of his earlier accident, and that, therefore, his death was proximately caused by this injury. This latter claim was the principal issue between the parties and was resolved in favor of the plaintiff by the verdict of the jury. Although there are four errors as*442signed, they are all directed to the narrow question at issue.

The court very properly charged the jury that for plaintiff to recover she must show by a preponderance of the evidence that the accident which occurred to her husband caused his mind to be deranged to such an extent that wholly without his own volition he performed the act which resulted in his death, and that, therefore, his act was directly and proximately caused by the accident in 1943. This was in accord with Section 1465-68, General Code, providing that such a recovery cannot be had if the injury was purposefully self-inflicted.

The factual occurrences were developed fully upon the trial and medical experts for both parties testified at length for and against the claim of the plaintiff.

The contention of the defendant is that the shooting of plaintiff’s decedent could not have been the act of an irresponsible mind, and that such was the cause was the hypothesis upon which .the plaintiff based her case and upon which the trial-judge submitted it to the jury. The plaintiff’s theory had support from the factual development and the jury accepted it as it had the right to do. It could well have found for the defendant had it elected to accept the testimony of the defendant’s witnesses.' The effect of the evidence only being involved, we cannot find either that the verdict is not supported by or that it is manifestly against the weight of the evidence.

The judgment is affirmed.

Counsel for plaintiff, concluding their brief, assert that no real question has been presented by defendant on the appeal and that the judgment should be affirmed and cost taxed against the defendant, including a reasonable attorney’s fee and damages, as provided by Section 12223-36, General Code. This section may not *443be given application in favor of the plaintiff if the appellate court certifies in its judgment that there was reasonable cause for the appeal. Although we would be favorable to further allowance to counsel for plaintiff for services rendered for their client in this court, we cannot say that there was not a reasonable ground for the appeal. As a matter of fact, counsel for defendant in the interest of their client, the state of Ohio, exercised sound professional judgment in prosecuting the appeal in view of the novel question presented and upon the diverse permissible inferences which could be drawn from the facts.

*Judgment affirmed.*

Miller, P. J., and Wiseman, J., concur.