Summary
In Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 Pac. 6, the evidence showed that lifting a wagon box caused a rupture of the innominate artery and that death was attributed to the rupture and the unusual exertion.
Summary of this case from Croy v. McFarland-Brown Lumber Co.Opinion
No. 4897.
May 24, 1928.
APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. O.R. Baum, Judge.
From judgment of district court affirming award of Industrial Accident Board defendants appeal. Affirmed.
A.M. Waters and Morgan Smith, for Appellants.
An award cannot be made on hearsay, or other incompetent evidence. If there is incompetent evidence in the record, made at the hearing held by a member of the board, it must be excluded and only competent evidence must be considered in determining the disputed questions of law and fact. ( Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Ericson v. Edward Rutledge Timber Co., 33 Idaho 179, 191 P. 212; Chicago Daily News Co. v. Industrial Commission, 306 Ill. 212, 137 N.E. 797; Englebretson v. Industrial Acc. Com., 170 Cal. 793, 151 Pac. 421; Reck v. Whittlesberger, 181 Mich. 463, 148 N.W. 247, 52 L.R.A., N.S., 930; Greener v. General Electric Co., 209 N.Y. 135, 102 N.E. 527, 46 L.R.A., N.S., 975; 1 Bradbury's Workmen's Compensation, 2d ed., p. 801; Valentine v. Weaver, 191 Ky. 37, 229 S.W. 1035; Ginsberg v. Burroughs' Adding Mach. Co., 204 Mich. 130, 170 N.W. 15; McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 Atl. 617; Riley v. Carnegie Steel Co., 276 Pa. 82, 119 Atl. 832; Bolton v. Columbia Casualty Co., 34 Ga. App. 658, 130 S.E. 535; Eastlick v. Southern Ry. Co., 116 Ga. 48, 42 S.E. 499; Employers Assur. Corp. v. Industrial Acc. Com., 170 Cal. 800, 151 P. 423; Smith v. Philadelphia Reading Coal Iron Co., 284 Pa. 35, 130 Atl. 265.)
In a case of this nature, in order to establish by expert medical testimony the connection between an alleged cause and a resulting injury, qualified medical experts must testify that, in their opinion, the injury not only possibly could, but most probably did, result from the alleged cause. ( Fink v. Sheldon Axle Spring Co., 276 Pa. 476, 113 Atl. 666; Davis v. Davis, 80 Pa. Super. 343; Thomas v. State Workmen's Ins. Fund, 280 Pa. 331, 124 Atl. 499; Gausman v. Pearson Co., 284 Pa. 348, 131 Atl. 247; Anderson v. Baxter, 285 Pa. 443, 132 Atl. 358.)
In order for respondent to recover compensation she must prove, by a preponderance of the evidence, that an injury which caused the death arose out of and in the course of the employment of deceased. (C. S., sec. 6217; United States Fuel Co. v. Industrial Com., 310 Ill. 85, 141 N.E. 401; Sparks v. Consolidated Indiana Coal. Co., 195 Iowa, 334, 190 N.W. 593; Chicago Daily News Co. v. Industrial Com., supra; Griffith v. Cole Bros., 183 Iowa, 415, 165 N.W. 577, L.R.A. 1918F, 923.)
A.A. Mattson and C.E. Melvin, for Respondent.
Declarations of existing pain and suffering, not part of the res gestae, are admissible whenever the bodily or mental feelings of the declarant are material to be proved. ( Seeley v. Central Vermont R. Co., 88 Vt. 178, 92 Atl. 28; Northern Pac. R. Co. v. Urlin, 158 U.S. 271, 15 Sup. Ct. 840, 39 L. ed. 977; Kansas City, M. B. R. Co. v. Butler, 143 Ala. 262, 38 So. 1024; Nicoll v. Sweet, 163 Iowa, 683, Ann. Cas. 1916C, 661, 144 N.W. 615, L.R.A. 1918C, 1099; Duffey v. Consolidated Block Coal Co., 147 Iowa, 225, 124 N.W. 609, 30 L.R.A., N.S., 1067; 3 Wigmore on Evidence, 2d ed., p. 686.)
Where a witness' competency to give expert testimony was not questioned on the trial, it will not be considered on appeal; and objection that an answer was not responsive to a question cannot be made for the first time on appeal. ( State v. Duff, 144 Iowa, 142, 138 Am. St. 269, 122 N.W. 829, 24 L.R.A., N. S., 625; Texas Midland R. R. v. O'Kelley (Tex.Civ.App.), 203 S.W. 152; Rivers v. Richards, 213 Mass. 515, 100 N.E. 45; Robinson v. Marino, 3 Wn. 434, 28 Am. St. 50, 28 P. 752; Brumley v. Flint, 87 Cal. 471, 25 P. 683; Kent Furniture Co. v. Ransom, 46 Mich. 416, 9 N.W. 454; Keefe v. Norfolk Suburban R. Co., 185 Mass. 247, 70 N.E. 46.)
If there is any competent or substantial evidence in the record to show, or from which it can be reasonably inferred, that the death of deceased was the result, of the injury claimed, and that such injury arose out of and in the course of his employment, the award should stand. ( McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Poccardi v. Public Service Com., 75 W. Va. 542, 84 S.E. 242, L.R.A. 1916A, 299; Marshall v. Sheppard, 6 B. W. C. C. (Eng.) 571; Milford Copper Co. v. Industrial Com., 61 Utah, 37, 210 P. 993; In re Powers, Op. Sol. Dept. of Labor, 214; Durga v. Williams, 89 Pa. Super. 516; Moody v. Industrial Acc. Com. (Cal.App.), 260 P. 967; Pfister Vogel Leather Co. v. Industrial Com., 194 Wis. 131, 215 N.W. 815.)
The employer, Anaconda Copper Mining Company, and the surety, Aetna Casualty and Surety Company, seek to vacate an award of compensation made by the Industrial Accident Board, and affirmed by the district court, to Leora Butler, based upon finding that her husband, Frank M. Butler, died as a result of rupture of artery caused by unusual strain sustained in the scope of his employment.
The defendants' essential contentions are: (1) That physicians who testified on behalf of the claimant and gave expert testimony at the hearing before the commission member were not shown to possess the necessary qualifications; and (2) that the finding of the board to the effect that the rupture which resulted in the death was traceable to an accident is founded upon hearsay testimony alone.
No objection was made at the hearing that the physicians were not shown to possess the training and experience necessary to enable them to testify as experts. Objection must be made at the time such testimony is offered, otherwise it is waived. In the absence of objection it is assumed the adverse party was satisfied the witnesses were competent to testify and their qualifications cannot be later questioned. ( Brumley v. Flint, 87 Cal. 471, 25 P. 683; Robinson v. Marino, 3 Wn. 434, 28 Am. St. 50, 28 P. 752; Texas Midland R. R. v. O'Kelley (Tex.Civ.App.), 203 S.W. 152.)
The testimony of the widow, the coemployees and the physician of statements made to them by the deceased at periods varying from one to six days after the date of injury as to the cause of the injury and the circumstances thereof was not admissible and was not, standing alone, competent or sufficient evidence to sustain a finding. ( Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 170 N.W. 15; Smith v. Philadelphia Reading Coal Iron Co., 284 Pa. 35, 130 Atl. 265; Riley v. Carnegie Steel Co., 276 Pa. 82, 119 Atl. 832; McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 Atl. 617; Bolton v. Columbia Casualty Co., 34 Ga. App. 658, 130 S.E. 535; Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036; Eastlick v. Southern By. Co., 116 Ga. 48, 42 S.E. 499.)
The receipt of incompetent evidence does not require a reversal if there is competent evidence to sustain the finding. ( Ginsberg v. Burroughs Adding Machine Co., supra; Valentine v. Weaver, supra, Hinrichs v. Davenport Locomotive Works, 203 Iowa, 1395, 214 N.W. 585.) In determining whether there is sufficient evidence to support a finding of the board the same rules are applied by an appellate court as are applied when a verdict of jury or finding of a court is reviewed. The determination of questions of fact is for the board and a finding supported by either positive evidence or logically inferred from circumstances will not be disturbed. ( McNeil v. Panhandle Lbr. Co., 34 Idaho 773, 203 P. 1068; Pfister Vogel Leather Co. v. Industrial Com., 194 Wis. 131, 215 N.W. 815; Indiana Portland Cement Co. v. Frazier, 86 Ind. App. 406, 158 N.E. 249; Ford Motor Co. v. Ford, 128 Okl. 221, 262 P. 201; Hartford Accident Indemnity Co. v. Industrial Acc. Com., 202 Cal. 88, 262 P. 309; Moody v. Industrial Acc. Com. (Cal.App.), 260 P. 967; Santa v. Industrial Acc. Com., 175 Cal. 235, 165 P. 689.)
Excluding from consideration the testimony of the various witnesses to statements made to them by the deceased, we are of the opinion the findings of the board are sustained by competent evidence. The following facts are either admitted or are supported by conflicting testimony. For several years prior to March 16, 1925, Frank M. Butler, a man of more than ordinary strength and of very good health, had been employed by the Anaconda Copper Mining Company as a carpenter at its phosphate mines at Conda, Idaho. On the date mentioned he, with three other men, transferred a wagon-box, constructed of two-inch planks, reinforced with heavy sheet steel and of the total approximate weight of 850 pounds, from sled to wagon trucks. The men were so grouped about the wagon-box that Butler carried more than his proportion of the load. While performing this work it was observed by at least one of his coworkers that his face became red but no complaint was made by him at that time. Though he continued to work the balance of that afternoon he lagged behind the other men when going from the place of employment to his home in the evening. The following morning he left home without the knowledge of his wife and without breakfast. When he reached the mine he was plainly in a distressed physical condition, was unable to ascend the stairs without resting. He complained then and frequently thereafter of his condition. When his wife discovered that he had gone to work without breakfast she went to the place of employment, talked with him and later consulted, by telephone, a physician at Soda Springs. The physician, from the wife's description of her husband's condition, concluded he was suffering from pleurisy and prescribed, among other things, the application of mustard plasters. The plasters were applied to the chest at the point where the ruptured artery was later found. From March 16th the deceased was unable to perform the work he was accustomed to do and frequently complained of his condition. His coworkers observed his progressing disability, the difficulty he experienced in breathing, his inability to perform any work requiring any considerable physical exertion, that his face was haggard, that he had the appearance of being "down and out," and they often inquired as to his condition. He continued to decline in health until March 22d, when he was taken to a hospital, where he died within a few minutes. The attending physician at that time attributed his death to hemorrhage or to blocked blood circulation. Some time later the body was exhumed and a more complete examination was made by or in the presence of three physicians and surgeons. They found a small rupture of the innominate artery and a clot of blood in such condition as to indicate to them that the injury had been sustained several days before death and that the loss of blood through the rupture had been intermittent only and at such times as pressure in the artery was sufficient to break the seal formed by the congealed blood. Two of the physicians could attribute death to nothing other than the rupture and it to nothing but his unusual exertion in lifting an unusual load. No other explanation of the rupture or cause of death is more than hinted at by the defendants or by the physicians who testified for them, one of who was present when the post-mortem examination was made. It is quite clear that the lifting of the wagon-box marked the beginning of his rapid decline in health.
We recommend that the judgment be affirmed. Since respondent's brief was not filed within the time provided by rule 43, costs should not be allowed therefor. ( Devereaux Mortgage Co. v. Huggins, ante, p. 74, 266 P. 421.)
Varian and Brinck, CC., concur.
The foregoing is approved as the opinion of the court, and the judgment is affirmed. No costs allowed.