Johnson v. La Bolt Oil Co.

Plaintiff claimed compensation under the Workmen's Compensation Law (Rev. Code 1919, § 9436 et seq., as amended). Certain compensation was allowed by a two to one award by the Industrial Board, which was affirmed by the commissioner on a petition for review. Thereafter an appeal was taken to the circuit court which sustained and affirmed the award made by the commissioner. This appeal is from the judgment rendered in the circuit court.

The respondent was an employee of the defendant La Bolt Oil Company, and the South Dakota Employers' Protective Association furnished a workmen's compensation insurance policy to said employer.

[1] The respondent, while employed on the 11th day of May, 1932, was injured while he and others were lifting heavy timbers in preparation for placing a tank upon some concrete pillars some seven or eight feet high. In other words, they were building a runway upon which to roll a new steel tank which was some eleven feet in diameter and some seven feet long. The timbers used in making the runway were about 12x12 inches and 14 to 15 feet long. While the respondent was engaged in lifting one of the timbers, he felt a sharp pain in his side, and examination thereafter showed that he had suffered an inguinal hernia while lifting one of the timbers.

From the evidence it appears that the respondent and one other were employed by the La Bolt Oil Company to work at both the service and the bulk supply station and to drive a truck for the company, and that respondent was insured while engaged in such work.

The workmen's compensation policy, while it does not specifically mention or provide for injuries received while employee was engaged in such work as the respondent was doing when he was injured, however, does provide for injuries received while engaged in the distribution of gasoline and oils, and it seems to us that the work of setting up the tank in which respondent was engaged when injured was in line with his regular work. The evidence shows that a new bulk tank was to be raised and placed upon a platform of concrete pillars, and it is respondent's contention that as an employee of the oil company at the bulk station it was his duty to aid in placing the timbers in position for the runway upon which the new bulk tank was to be rolled, and he further contends that it was during the raising of one of these timbers or planks that he was injured.

Men whom oil companies employ are generally required to do, without the hiring of outside help, whatever work needs to be done at the service and bulk stations, such as setting up equipment, repair work, and such classes of work as they themselves are able to do. The appellant insurer must have known, as a matter of course, what different kinds of work the insured was likely to have to engage in, and we therefore think that the policy which the insurer issued was intended both by appellant and respondent to cover the setting up of equipment, repair, distribution, or whatever work respondent was required to engage in in connection with his work of taking care of the bulk station.

[2] The respondent contends that, due to the strain of lifting the heavy timbers for the platform, he developed an inguinal hernia. The testimony of the two doctors who operated upon respondent and who testified at the hearing was to the effect that respondent was in good health, "was a big, husky fellow," that in their examination they found nothing that would indicate prior weakness or a diseased condition, and that to the best of their belief the respondent developed the hernia on May 11, 1932, during the time he was helping to build the heavy runway.

Appellant cites Frank v. Chicago, Milwaukee St. Paul Ry. Co.,49 S.D. 312, 207 N.W. 89, 92, in support of his contention that, where an employee exerts himself in an ordinary manner and as intended and where hernia results from the mere exertion and a bodily weakness, there is no accident, and no recovery will be permitted. An examination of that opinion cited discloses the fact that claimant suffered from a clot of blood formed in the vein through infection, and that it was a case of thrombosis formed in the upper part of the thigh in the femoral vein, a large vein near the middle of the leg. It was contended in that case that the applicant suffered from disease or infection, and this contention was supported by well-established medical authority. In that case we said: "If the ailment was thrombus phlebitis, and there is no evidence that it was anything else, it could not have been the result of an accident arising out of and in the course of the employment, but was a disease resulting from some cause other than an injury by accident."

The court used the following language: "Claimant was doing his work in the usual manner, as intended, without unusual strain or mishap. Before he can recover it must appear that some mishap, some untoward and unexpected event, occurred without design; that some accidental injury was suffered, traceable to a definite time, place and cause. Matthiessen Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, 120 N.E. 249; Taylor v. Swift Co., 114 Kan. 431, 219 P. 516; Kutschmar v. Briggs Mfg. Co.,197 Mich. 146, 163 N.W. 933, L.R.A. 1918B, 1133. Any exertion which increases the heart action no doubt distends the veins and arteries in increased pulsations and consequent burden upon the veins, but this is usual, expected, and not injurious. Exercise is usually considered beneficial. Perhaps too much exercise or labor may be injurious and produce varicose or permanently distended veins, but such a condition must be classed as a disease — it cannot be classed as caused by accident."

However, it will be observed that, in the closing lines of the above, the writer of the opinion emphasizes that the condition must be classed as a disease and not as having been caused by accident. This is further disclosed by what this court had just previously said when it quoted from the Workmen's Compensation Act (section 9490) as follows: "``Injury' or ``personal injury' shall mean only injury by accident rising out of and in the course of the employment and shall not include a disease in any form except as it shall result from the injury."

It will be observed that the statute seeks to fix personal injury due to accident, and it shall not include disease in any form except as it shall result from the injury. The result reached in the Frank Case is fully justified by the conclusion of the court that the disability there involved was due to disease as distinguished from accident. Anything further that may have been said in that case should not be construed as barring the recovery in the instant case, and we expressly renounce and overrule the language used in that case as follows: "Claimant was doing his work in the usual manner, as intended, without unusual strain or mishap. Before he can recover it must appear that some mishap, some untoward and unexpected event, occurred without design; that some accidental injury was suffered, traceable to a definite time, place, and cause."

[3] We are of the opinion that to constitute an injury "by accident" within the meaning of section 9440, R.C. 1919, it is sufficient that the injury itself is unexpected, and that it is not necessary that the cause of the injury should be untoward or unexpected, occurring without design.

[4] In the case at bar there is testimony to the effect that the attending physician did not see anything indicating when the hernia developed or occurred except from the history of the case, and that the thickness of the wall indicated only in a general way whether the hernia was old or recent. Old hernias have thick walls, and new hernias thin ones. This had a thin wall. It is therefore apparent that the board of arbitration and the industrial commissioner could conclude, from the evidence before them, that it was a recent hernia and that it occurred on May 11, 1932, and from the testimony of one physician, that he "would say it was a new hernia."

Bayer v. Chicago, B. Q. Ry. Co., 53 S.D. 166, 220 N.W. 459, 460, cited by appellant, was an action for damages brought under the Federal Employers' Libality Act (45 USCA §§ 51-59) and not under the South Dakota Workmen's Compensation Law, and was based upon the federal act on which the action was brought making the appellant liable for "injury or death, resulting in whole or in part from the negligence" of any of its officers, agents, or employees or "by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." It will be observed from the foregoing and the language used by the writer of the opinion that the facts are not identical with those in the case before us, because that case was one dealing with negligence attributable to appellant, while in the instant case we are expressly confined to injury by accident under our South Dakota Workmen's Compensation Law.

The facts in Kutschmar v. Briggs Mfg. Co., 197 Mich. 146, 163 N.W. 933, L.R.A. 1918B, 1133, are not at all in line or parallel with the facts disclosed by the record before us.

The case of Robbins v. Original Gas Engine Co., 191 Mich. 122, 157 N.W. 437, 439, is almost identical to the instant case. In the Robbins Case the claimant suffered an inguinal hernia while helping to lift a heavy engine. Medical testimony was to the effect that the hernia was new and was not an old hernia, and that it was caused by the strain in moving the heavy engine. The court, in part, said: "* * * It is assumed that it was the first time the sac had been forced through the abdominal wall. If it is also assumed that there was a certain lack of physical integrity in the parts where the injury was manifested, still I think claimant may have compensation for the injury he suffered. I decide only the particular case, and in doing so decline to hold, upon this record, that claimant suffered from disease and not from accidental injury. * * *" See, also, Bell v. Hayes-Ionia Co., 192 Mich. 90, 158 N.W. 179; Hurley v. Selden-Breck,193 Mich. 197, 159 N.W. 311; Valeri v. Village of Hibbing, 169 Minn. 241,211 N.W. 8, 60 A.L.R. 1296; Poccardi v. Public Service Commission, 75 W. Va. 542; 84 S.E. 242, L.R.A. 1916A, 299; Case of Brown, 123 Me. 424, 123 A. 421, 60 A.L.R. 1293, and note.

Appellant contends that respondent did not slip or fall and that nothing unusual happened that could be called an accident, and that there would have been no hernia if there had not been a weakness in respondent's bodily structure; that for these reasons respondent's injury is not compensable.

[5] The fact that the respondent may have had a weakness in his bodily structure or that he was predisposed to hernia, although the evidence does not prove such a fact, would not, we believe, prevent him from recovering compensation under the Workmen's Compensation Act. In the case of Hartz v. Hartford Faience Co.,90 Conn. 539, 97 A. 1020, 1022, where an employee, while lifting a barrel, suffered a hernia, to which he was predisposed, the court said: "When the exertion of the employment acts upon the weakened condition of body of the employee, or upon an employee predisposed to suffer injury in such way that a personal injury results, the injury must be said to arise out of the employment. An employee may be suffering from heart disease, aneurism, hernia, as was Mr. Hartz, or other ailment, and the exertion of the employment may develop his condition in such a manner that it becomes a personal injury. The employee is then entitled to recover for all the consequences attributable to the injury. The acceleration or aggravation of a pre-existing ailment may therefore be a personal injury within our act. * * *" See, also, Puritan Bed Spring Co. v. Wolfe, 68 Ind. App. 330, 120 N.E. 417; Jordan v. Decorative Co., 230 N.Y. 522, 130 N.E. 634; Alpert v. Powers, 223 N.Y. 97, 119 N.E. 229; Bell v. Hayes-Ionia, supra; Springfield District Coal Mining Co. v. Industrial Commission et al, 303 Ill. 528, 135 N.E. 792.

[6] The board of arbitration made findings of fact. Thereafter upon a petition for review the industrial commissioner made findings sustaining the board of arbitration, made an award and a judgment. We believe that there is substantial evidence to sustain the findings and conclusions of the board and industrial commissioner. We cannot disturb the findings if there is reasonable, credible, and substantial evidence to support them. Wieber v. England, 52 S.D. 72, 216 N.W. 850; Id., 59 S.D. 1,238 N.W. 25; Day v. Sioux Falls Fruit Co. et al, 43 S.D. 65, 177 N.W. 816; Vodopich v. Trojan Mining Co., 43 S.D. 540, 180 N.W. 965; Dependents of Shaw v. Freeman C. Harms Piano Co., 44 S.D. 346, 184 N.W. 204; Wakefield v. Warren-Lamb, Lumber Co., 46 S.D. 510, 194 N.W. 835; Ross v. Independent School District, 49 S.D. 491,207 N.W. 446; Cassels v. H.W. Cassels Co. et al, 59 S.D. 643,242 N.W. 587; Barwin v. Ind. Sch. Dist. of Sioux Falls, 61 S.D. 275,248 N.W. 257.

The judgment and order appealed from are affirmed.

ROBERTS, P.J., and RUDOLPH, J., concur.

POLLEY, J., dissents.