Patrick v. J. B. Ham Co.

Hanson, J.

This is an appeal by J. B. Ham Company, an employer, and Royal Indemnity Company, its insurance carrier, from a decision of the chairman of the Industrial Accident Commission ordering them to pay to Elizabeth Patrick, dependent widow of Joseph Patrick, a deceased employee of said J. B. Ham Company, weekly compensation of $11.80 to the maximum sum of $3,500 provided for by the Workmen’s Compensation Act.

The facts found by the Industrial Commission were as follows:

On October 13, 1919, Joseph Patrick was an employee of the J. B. Ham Company, grain dealers of Lewiston, Maine. The J. B. Ham Company were assenting employers under the terms of the Workmen’s Compensation Act.

On the date of the alleged injury Mr. Patrick was engaged in loading a car of grain at the place of business of the J. B. Ham Company. The grain was in bags containing 100 lbs. each and consisted of corn and mixed grain. The grain was being wheeled into a car on small trucks, two bags at a time. Mr. Patrick had charge of loading the car, and remained in the car. Other employees were trucldng the bags into the car. As the bags were trucked into the car they would be wheeled to the front of the pile in such a manner as to place the bags to be unloaded from the truck parallel with those already placed in the car, the man who had wheeled the bags in would set the truck down and take one end of the bag while Mr. Patrick standing at the front end of the truck would take the other end of the bag, and the two would swing the bag onto the pile. As the bags were piled up the height would vary according to the number placed in the car.

Mr. Patrick was engaged in this ldnd of work all the morning of October 13th. He went home to his dinner as usual at noon and returned as usual at one o’clock ready to continue his work. As the work commenced in the afternoon, a Mr. Bailey, who was one of those wheeling the grain into the car, asked Mr. Patrick if he was ready for some corn and Mr. Patrick said “Bring it in.” Mr. Bailey brought in a load of two bags and together with the help of Mr. Patrick started to place the bags on the pile, one at a time, in (he usual way. Mr. Bailey testified that the pile, at that time, was about three feet high where the bags were to be placed.

Mr. Patrick stooped to pick up his end of the bag and as he threw it onto the pile Mr. Bailey said he noticed Mr. Patrick lurched a little. However, they put the bag in place and both stooped and picked up the second bag and placed it on the pile. Again Mr. Bailey says he noticed that Mr. Patrick lurched a little as he swung the bag up.

Mr. Bailey then went after another load of grain and returned with it. Again Mr. Patrick stooped to pick up his end of a bag but this time he fell across the bag and could not lift it. Mr. Bailey then saw there was something wrong with Mr. Patrick and he called some other men who, together with Mr. Bailey, assisted Mr. Patrick to walk out of the car into the store-room. Mr. Patrick soon became unconscious, he was sent at once to a hospital where he died about ten o’clock that night without regaining consciousness. The cause of the death, as testified by two physicians, was cerebral hemorrhage.

No question is raised as to dependency, and the chairman found that Elizabeth Patrick was a dependent as defined by sub-division (a) Paragraph VIII, Section 1 of the Workmen’s Compensation Act, upon Joseph Patrick at the date of his death. And basing his decision upon the foregoing facts, and upon the testimony of the two physicians testifying in the case, the chairman further found that “in view of these two opinions, expressed by the two physicians who saw and attended Mr. Patrick, and the further evidence that Mr. Patrick had resumed his work for the afternoon in apparently his usual health and was actually engaged in that work at the time the fatal hemorrhage first appeared, and in view of the entire lack of evidence of any other possible cause of the hemorrhage,«the chairman finds that Mr. Patrick’s death was due to a personal injury by accident arising out of and in the course of his employment.”

The decree followed, and it is the opinion of the court that there was evidence upon which the decision of the Commission can rest.

Counsel for appellant contends that the chairman not only misapprehended the evidence on various vital points, but that he in effect placed the burden of proof not upon the claimant, but upon the respondents.

As to the first contention, -the appellant’s counsel strenuously urges that the testimony of Mr. Bailey is inconsistent with an affidavit previously made, which affidavit was written by. counsel himself, and after cross-examining Mr. Bailey in detail as to Iris statements, introduced the affidavit.

The chief contention .was over the circumstances attending the piling of the first and second bags. There is variation between the affidavit and the testimony before the Commission, as there always is when months intervene, but the variation is not such as to discredit the testimony of Mr. Bailey, and it can be reconciled easily with the petitioner’s theory when the whole record is taken into consideration. It may be said that appellant does not challenge the integrity of the witness, nor do we find that his close cross-examination destroys the value of his testimony because of its inconsistency. Counsel’s theory is that Patrick was stricken before he lifted at all, on either of the bags, and he claims that Bailey’s testimony supports his theory, but it is found that after confronting him with his former statement as to Patrick’s position on the arrival of the first two bags, Bailey does not support his claim. The record has it: — •

“Q. Now Mr. Bailey don’t you recall that at that time you stated that ‘when he stooped for the first bag, I noticed him lurch forward against the bag before he lifted it?’

A. I do, yes, sir.

Q. And then that you said, — ‘That is strange, he was a strong man and usually threw a bag of grain easily enough.’

A. I did.

Q. You made that statement?'

• A. I made that statement. He lurched every time against the bag when he lifted it, but he lifted the two bags.”

It is evident that the predisposing cause of Patrick’s death operated in a very few .minutes, and possibly within less time than a minute. The mere act of piling two bags would not consume a minute. It is argued that at one o’clock Mr. Robitaille, who was employed in the car pulling nails from the inside of the car, tried to talk with Patrick, who was then “looking at his tally slip which was nailed to the side of the car,” and receiving no response to his remarks, ceased speaking, and continued his work. It is argued from this occurrence that Patrick was then affected by the attack of cerebral hemorrhage which caused his death. But it appears that George M. Bailey, another employee, and the witness whose testimony reveals all the important facts and circumstances in the case, entered the car at five minutes after one o’clock and asked Mr. Patrick if he could take some corn in the south end of the car, and Patrick said “Yes, bring it in.” A man stricken with cerebral hemorrhage would not be likely to answer so promptly. Immediately after this, Mr. Bailey brought in the first truck load of two bags and proceeded to unload the same with Patrick’s help. In the act of jointly lifting and piling the two bags the cause of Mr. Patrick’s death occurred, whether from accident arising out of and in the course of his employment, or from natural causes. It necessarily happened then. This is made certain by the testimony that Bailey returning for another load, said to another workman, “Joe has had a shock,” and on returning Bailey found Patrick standing “where he had left him,” and “Patrick reached down to take hold and lurched over again, smiled, and drool was running out of his mouth.” He did not lift on the second truck load, but turned and tried to “hold himself to the side of the car.” That Mr. Patrick was stricken while in the course of his employment is not disputed. That he was a man of middle age, of good habits and regular life, and in the same employment for many years, appears in the record.

Upon the second contention counsel urges that “the decision of the Commission throws the burden of proof upon the respondents instead of upon claimant.” In his decision the chairman says:

‘ ‘The only question raised in this case therefore is whether the final cause of the cerebral hemorrhage was a natural one or an act of Mr. Patrick while in the course of his employment.

No evidence was produced at the hearing of any cause to which the hemorrhage could possibly be attributed, except the employment in which Mr. Patrick was engaged.”

And again he says: “In view of the entire lack of evidence of any other possible cause of the hemorrhage, the Chairman finds that Mr. Patrick’s death was due to a personal injury by accident arising out of . . . . the employment.”

As to this contention, we do not perceive that the record supports the same, or that the language used by the chairman can be held to have any such import as claimed by appellant. When read in connection with the finding as a whole, the suggestion of any such position on the part of the chairman disappears. The statement of the negative position was surplusage, and no doubt could have been omitted, but its inclusion cannot invalidate the positive fact found, which is the important inquiry here.

That the burden of proof was amply sustained within the rule laid down in Mailman’s Case, 118 Maine, 172, is clearly shown in the record. And Mailman’s Case, supra, is decisive of this case, and is authority for such change of burden of proof or proceeding had the same been required. There, as here, there was dispute as to the circumstances, and much was left for the Commission to settle from inferences to be drawn from the facts proved or admitted. There the court held, that “The decree of the Commission is analogous to a finding of a Judge who by consent determines facts or an award by a referee agreed upon by the parties. That such a finding or award cannot be impeached by showing errors of judgment, however gross, as to the weight and credibility of testimony, is settled by so many authorities that'citation is unnecessary.” And “In a case proved wholly, or in part, circumstantially, when there is dispute as to what the circumstances are, the determination of such dispute by . the Commission is final. It is for the trier of facts, who sees and hears witnesses, to weigh their testimony and without appeal to determine their trustworthiness.” ‘ 'And finally, when the evidence is circumstantial and a state of facts is shown more consistent with the Commissioner’s finding than with any other theory, and the finding is supported by rational and natural inferences from facts proved or admitted, an appeal cannot be sustained.”

The chairman found from facts proved and inferences from facts proved, that the decedent’s death was due to personal injury by accident arising out of and in the course of his employment.

In Saunders v. New England Collapsible Tube Co., et al, Supreme Court of Errors of Connecticut, June 10, 1920, 110 Atl., 538, a similar question was presented, and the court say:—

“It is the duty of the trier to infer what one has done or left undone, although there be no positive testimony of this. And when the appellate court passes upon whether this duty has been judicially performed by legal standard it cannot inquire whether it would have reached the same result; it must limit its inquiry to the ascertainment of whether the inference is so unreasonable as to be unjustifiable. It is the right of every trier to infer what one’s conduct has been in the circumstances, even though the inference reaches beyond the positive testimony in the case. Bunnell v. Berlin Iron Bridge Co., 66 Conn., 24, 36, 33 Atl., 533; Union Bank v. Middlebrook, 33 Conn., 95, 100; Dubuque v. Coman, 64 Conn., 475, 479, 30 Atl., 777.” And the opinion adds: “It was the jn'ovince of the commissioner to determine which theory was supported by the evidence. And if the evidence reasonably supported either theory he might adopt that theory, and the Superior Court on appeal could not disturb his decision upon that ground. The Superior Court does not weigh evidence in this class of cases; it may determine whether the finding of the commissioner should be corrected or not, or whether there was any evidence to support the conclusions reached. And when it has done this its control over the evidence ceases.”

We are asked to reverse the decision of the Commission because, as defendant’s counsel says, “there is not even a “scintilla of evidence to support its -finding.” We think there was sufficient evidence, though slight from the very nature of the case, to support the finding, and that the inference of death from accidental cause was reasonable and justifiable.

The petitioner claimed that Patrick’s death was due to injury resulting from accident occurring while decedent was engaged in lifting bags of grain. Appellant contended that there was no accident, but that decedent died from natural causes.

In reaching his conclusion the chairman had to determine:—

1. Do the facts and circumstances of the case warrant a finding that an accident occurred injuring the decedent, within the meaning of the Act, and if so,—

2. Did the decedent die from the results of such injury by accident?

The answer to the first question, under the testimony solves the second, and sets at rest the contentions of counsel upon the main issue in the case.

What is an accident, and what is the meaning of the word, the generally accepted meaning, and the generally adopted application in Acts similar to that under consideration here? As defined by lexicographers, an accident is a befalling; an event that takes place without one’s forethought or expectation; an undesigned, sudden, and unexpected event. Its synonyms include mishap, mischance, misfortune; disaster, calamity, catastrophe. Webster’s New International Dictionary.

1. In general, anything that happens or begins to be without design, or as an unforeseen effect; that which falls out by chance; a fortuitous event or circumstance.

2. Specifically, an undesirable or unfortunate happening; an undesigned harm or injury; a casualty or mishap.

3. "The operation of chance; an undesigned contingency; a happening without intentional causation; chance; fortune. Century Dictionary.

1. Anything that happens; an occurrence; event. Especially:

(1) Anything occurring unexpectedly, or without known or assignable cause; a contingency.

(2) Any unpleasant or unfortunate occurrence, that causes injury, loss, suffering or death.

(3) Med. An unfavorable or unanticipated symptom. New Standard Dictionary.

Bouvier, Rawles Revision, defines it, “An event which under the circumstances, is unusual and unexpected by the person to whom it happens.”

These sources of information, defining the word, are in complete harmony with the popular and generally accepted use of the word, and especially as construed by courts in states having Workmen’s Compensation Laws with provisions similar to the provisions of the Maine Act. Some of the authorities are: Bystrom Bros. v. Jacobson, 162 Wis., 180; 155 N. W., 919; Zappala v. Ind. Ins. Commission (Wash.) 144 Pac., 54; E. Baggot Co. v. Ind. Commission, (Ill.) 125 N. E. 254; Clark v. Lehigh Valley Coal Co., (Pa.), 107 Atl., 858; Miller v. Bell (Ind. App.), 127 N. E., 567; Bd. of Comrs. v. Shertzer, (Ind. App.), 127 N. E., 843; State Road Comm. v. Ind. Commission (Utah), 190 Pac., 544; Steel Sales Corp. v. Ind. Commission (Ill.), 127 N. E., 698; Grannison’s Admr. v. B. & R. Const. Co., (Ky.), 219 S. W., 806; Manning v. Pomerene (Neb.), 162 N. W., 492; State Ex.rel Rau v. District Court (Minn.), 164 N. W., 916; City of Joliet v. Ind. Commission, (Ill.), 126 N. E., 618. Peoria Co. Ind. Board, 279 Ill., 352, 116 N. E., 651. M. & H. Zinc Co. v. Ind.-Board, 120 N. E., 249.

In Peoria Co. Ind. Board, supra, may be found many cases cited both in this country and in England sustaining the petitioner’s contention here, and the case holds that “Even where a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under certain circumstances which can be said to be accidental, his death results from injury by accident. Acceleration or aggravation of a pre-existing disease is an injury caused by accident. 1 Bradbury on Workmen’s Comp., 385; Elliot’s Workmen’s Comp. Act (7th Ed.) 9, and cited cases. Another (¡ase directly to the point is also cited therein: “A workman, whilst tightening a nut with a spanner, fell back on his head and died. A post-mortem examination showed that there was a large aneurism in the aorta, and that death was caused by a rupture of the aorta. The aneurism was in such an advanced condition that it might have burst while the man was asleep, and a very slight exertion or strain would have been sufficient to bring about a rupture. The trial judge found that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal, and held that it was an accident within the meaning of the law. This decision was upheld both by the court of appeal and the House of Lords. Hughes v. Clover & Clayton & Co., (1909), 2 K. B., 798.”

That Patrick was suffering from diseased arteries pre-disposing him to cerebral hemorrhage is of no consequence in the case. That he might have died, or would have died in his bed, of cerebral hemorrhage, in a year or a week is immaterial.

The question before the Commission was whether the work that he was doing on the afternoon of October 13th, 1919, caused the cerebral hemorrhage to then occur. If so, we think it was an accident arising out of and in the course of his employment.

This was a question of fact. The Industrial Accident Commission through its chairman has decided this question of fact in favor of the claimant. The finding is, we believe, supported by rational and natural inferences from proved facts.

Accidental injury causing death is at least as believable and reasonable, as the theory that a man continued to talk rationally and perform manual labor for a time, however short, after a,n attack of cerebral hemorrhage which causes death in a few hours. Of the two theories, the former was adopted by the Commission as the more reasonable, and we do not feel justified in disturbing its finding.

Appeal dismissed.

Decree affirmed.