Croy v. McFarland-Brown Lumber Co., 5667

• Decision Date: 03 July 1931
• Docket Number: 5667
• Citation: 51 Idaho 32,1 P.2d 189
• Court: Idaho Supreme Court
• Parties: MRS. CARRIE CROY, Claimant and Respondent, v. MCFARLAND-BROWN LUMBER COMPANY, Employer, and AETNA CASUALTY & SURETY COMPANY, Surety, Appellants

1 P.2d 189

51 Idaho 32

MRS. CARRIE CROY, Claimant and Respondent, v. MCFARLAND-BROWN LUMBER COMPANY, Employer, and AETNA CASUALTY & SURETY COMPANY, Surety, Appellants

No. 5667

Supreme Court of Idaho

July 3, 1931

WORKMEN'S COMPENSATION LAW-COMPENSABLE INJURY-BURDEN OF PROOF-EVIDENCE-INDUSTRIAL ACCIDENT BOARD-FINDING CONCLUSIVENESS.

1. Compensation claimant has burden to prove deceased suffered accident arising out of and in course of employment (C. S sec. 6213 et seq., as amended).

2. Findings of Industrial Accident Board will not be disturbed on review, if supported by competent evidence.

3. Though accident within Workmen's Compensation Law may be slight and untoward circumstances meager, there must be some distinctive unexpected happening (C. S., sec. 6213 et seq. as amended).

4. To constitute accident "arising out of and in course of employment," within Compensation Law, there must be probable, and not possible, connection between cause and effect (C. S., sec. 6213 et seq., as amended).

5. Evidence held insufficient to establish accidental injury to employee or causal connection between injury and death within Compensation Law, occurring while climbing hill in woods and carrying heavy load (C. S., sec. 6213 et seq., as amended).

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Everett E. Hunt, Judge.

Proceeding under Workmen's Compensation Law. Judgment reversing order of Industrial Accident Board denying compensation. Reversed.

Reversed.

Harry M. Morey and R. M. Cummins, for Appellants.

The burden is on the claimant, in compensation cases just as in common-law actions, to prove his case, that is, to prove that there was an injury by accident arising out of and in the course of the employment, and in the event of death, that the death resulted from said injury. (Singlaub v. Industrial Acc. Com., 87 Cal.App. 324, 262 P. 411; Aetna Life Ins. Co. v. Industrial Com. of Utah 64 Utah 415, 231 P. 442; 28 R. C. L., p. 812, par. 99; Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992.)

Myrvin Davis, for Respondent, cites no authorities on points decided.

GIVENS, J. Lee, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, J.

This appeal is from a judgment of the district court awarding compensation, reversing an order of the Industrial Accident Board, denying compensation.

The material testimony was as follows:

Mrs. Croy stated her husband (the employee for whose death compensation is sought) was as a rule always healthy, and had not had any trouble she knew of; about a week before Christmas (December 15, 1928) he came home in an automobile from work in the woods, walked into the house, said he had "had that spell," and complained about his head being "woozy," and hurting him; he went to the hospital; no doctor was there, and the nurse gave him some pills and a bottle of medicine, told him to go home and to bed, which he did, and she (his wife) rubbed him with liniment, which did him more good than medicine. He stayed home a week sitting up, and then returned to work (December 31, 1928); that his head still felt "woozy," otherwise he felt good.

Mike Doyle said he was working with Mr. Croy in December; going to work they each carried a crowbar, pick, chopping axe, and lunch, all weighing about forty pounds, and right after breakfast had walked up a steep road about twenty per cent, for three-quarters of a mile, when they stopped to rest; the witness saw Mr. Croy fall headlong under a pile of poles by the road side; that is into a little bit of a dip between the skids (under the poles); a little depression under the poles into quite a little snow (the poles did not fall on Mr. Croy); that Mr. Croy was unconscious and had a little bruise on his nose, and a little blood on his nose which did not amount to much (in his oral argument, counsel for claimant did not contend the striking of the nose, if it did strike the poles, was an, or the, accident which would authorize compensation); several came up, and all worked about three-quarters of an hour on Mr. Croy, when he gasped a little, and finally regained consciousness; he was picked up and taken in a dray or little low sled, to the foot of the hill and then in an automobile to his home.

Another of Mr. Croy's fellow workmen, F. N. LeFeur, testified that the morning Mr. Croy died (January 12, 1929), after breakfast about 6:30, they went up a pretty steep road (the same traveled by Croy and Doyle), over which logs and supplies were hauled, and traveled by some automobiles; and on arriving at their destination, before starting to saw, took off their coats, about twenty to forty feet apart, when the witness saw Mr. Croy fall, making a noise something like a gasp. The witness quickly went to Croy, and tried to help him; worked his arms and legs and rubbed the back of his neck. Mr. Croy did not give very much sign of life, only once opened his eyes a little bit; the witness asked him if he was getting better; his eyes went shut and he did not open them any more; at witness' call, help came, but Mr. Croy never regained consciousness at all.

Dr. Stackhouse, the only physician called, testified for the claimant (the appellants introduced no evidence) as follows:

"Q. Then, doctor, if the evidence should show in this case that Otis Croy was a man about six feet tall and weighing about 200 pounds, engaged in woods work, and after eating breakfast about half an hour later walked about 3/4 of a mile up quite a steep road and stopped to rest, putting their burdens down and . . . . that he was standing facing a pile of poles that were about three to four feet high and that the poles were placed up on skids and that there was a pit or depression in the ground under the side of the poles at the point where Mr Croy fell, that in falling he made a sound sufficient to attract the fellow worker that was standing some few feet from him, and when this fellow worker turned he saw that Mr. Croy had fallen and that his head and shoulders were underneath the poles, this pile of poles, that he was lying on his face and that his nose had been struck against something and had caused an abrasion which bled, on about the bridge of his nose . . . . (omitting remarks of counsel) and from that accident remained unconscious for about 45 minutes and was taken to his home, being assisted to a car, and upon reaching home after a ride of about 20 miles, walked into the house by himself, stayed at home for about two weeks, had pains in his head, and his head felt during that time,--it was described as 'woozy'--then returned to work and worked about nine days at labor that is not disclosed, and on the morning of the 10th after climbing a steep road about half a mile again fell over and did not recover consciousness and died,--could the first accident be considered the probable cause of his death, and, if so, tell us for what technical reasons? . . . . (Objections and rulings omitted.)

"A. As I see the question, letting out the question of the actual contact, probability of the contact, of the pole with his person--is that it?

"Q. Yes.

"A. An injury of that kind might be sufficient to cause a temporary unconsciousness. There might be several pathological conditions develop. There might be a condition in which, a condition of the brain, in which event there would be a temporary loss of consciousness. With the description, or a condition that you have described, the regaining of consciousness, a 'woozy' condition, for a period of time and the later regaining of sufficient strength to attempt to resume his occupation, it appears to me that that might be possible. . . . (Objection and ruling omitted.)

"A. A second condition that might develop from such an injury might be the blow, with the contusion, with a loss of a certain amount of blood, a small amount of blood, I will say with a varying amount of blood, it might be small or moderate,--with that condition there might be temporary restoration of consciousness with mental confusion and an ability, after a period of time, after a certain amount of absorption had taken place, and ability to resume his occupation to a limited degree, depending on the amount of absorption of the clot or exudate that had developed as a result of an injury.

"Q. Now, the question, as I framed it, I believe, doctor contemplates your giving as your opinion as to the connection between this...