Rivard v. J. F. Mcelwain Co., 3719.

• Citation: 58 A.2d 501
• Decision Date: 19 April 1948
• Docket Number: No. 3719.,3719.
• Parties: RIVARD v. J. F. McELWAIN CO.
• Court: New Hampshire Supreme Court

58 A.2d 501

RIVARD

v.J. F. McELWAIN CO.

No. 3719.

Supreme Court of New Hampshire.

April 6, 1948.

Rehearing Denied April 19, 1948.

Transferred from Superior Court, Hillsborough County; Wescott, Judge.

Proceeding under the Workmen's Compensation Act by Alice Rivard, administratrix, claimant, opposed by J. F. McElwain Co., employer. Compensation awarded, and case transferred from trial term on employer's exceptions.

Exceptions sustained in part and overruled in part.

Petition, for workman's compensation for death resulting from a strangulated hernia, under R.L. c. 216, as amended by Laws, 1943, c. 113. The court, in awarding ‘the plaintiff the sum of $6,300 plus two weeks total incapacity amounting to $42.76,’ made the following findings of fact:

‘1. The deceased was injured on November 14, 1946 by accident arising out of and in the course of his employment with the defendant in its shoe manufacturing business.’

‘6. Although the deceased had suffered a hernia several years before the accident, he was otherwise in good health at the time of the accident, and had been working steadily prior to the accident.’

‘10. The strain of the work that deceased was engaged in at the time of the accident (November 14, 1946) was a contributing cause of his death which occurred on November 30, 1946.’

Defendant's exceptions to the admission of evidence, the quoted findings of fact, the amount of the award and the denial of the motion to dismiss the petition were allowed and transferred by Wescott, J. The facts appear in the opinion.

Maurice A. Broderick, of Manchester, for plaintiff.

Alvin A. Lucier, of Nashua, for defendant.

KENISON, Justice.

As a preliminary matter it will be noted that New Hampshire, unlike a majority of states, has no specific statutory, provision restricting compensation in hernia cases. Arduini v. General Ice Cream Co., 123 Conn. 43, 192 A. 314, 114 A.L.R. 1333, 1337. ‘It is not to be doubted that an accidental hernia, sustained under conditions mentioned, [in R.L. c. 216, § 2] would be compensable.’ 5 Schneider, Workmen's Compensation, Perm. Ed. 1946, § 1508.

We first consider defendant's contention that ‘competent evidence is lacking to show that the work produced the hernia.’ The decedent Rivard had worked for the defendant as a rough rounder for several years although suffering from a scrotal hernia. The work was described in some detail. ‘Of course he had to pick the shoe up out of the rack, grabbed it with both hands, put it in the machine and then put it back in the rack. Naturally he has to go and get the racks and push them along to the next fellow.’ The shoe was held at chest level ‘good and tight’ against the machine that cuts off the excess leather on the sole of the shoe. A witness, who testified that pressure was required to hold the shoe against the machine, was cross-examined:

‘Q. In other words, the operator doesn't have to push his hands against the machine or twist the shoe around? A. Well, he does twist it in a way. He has to follow the shoe around.

‘Q. So that as the machine turns it around it won't fall out of the machine? A. That's right.’

A fellow employee described the operation as ‘heavy work’; ‘It is generally known as kind of strenuous work.’ The foreman stated that, ‘It isn't anything very very heavy.’

During 1946 the decedent had worked steadily in defendant's plant, except for a brief attack of grippe and a ten day vacation, until November 14th. On that day he had departed from his home and arrived for work in his normal state of health. He was seen working in his usual manner and had already completed a ‘few’ cases of shoes when he was observed sitting on a box next to his machine complaining of cramps in his stomach and back. He was assisted to the office of the company nurse and sent home. Subsequently after an operation he died November 30th from strangulated right inguinal hernia with necrosis and perforation of small bowel. In answer to hypothetical question embodying in substance the above facts, the attending physician testified that the pressure exerted by the decedent probably caused the new hernia and strangulation. He also testified that it was consistent with what he found when he operated upon the decedent.

There was competent evidence in this record to enable the Trial Court to find, as it did, that the work produced the new hernia. There is sufficient evidence of grabbing, pushing, twisting and the exertion of pressure to connect the strain of the work on November 14th to the subsequent death on November 30th. Guay v. Brown, 83 N.H. 392, 142 A. 697, 60 A.L.R. 1284; Vallee v. Spaulding Fibre Co., 89 N.H. 285, 286, 197 A. 697.

A more troublesome question is whether an ordinary and usual strain at work contributing to death by hernia strangulation is ‘by accident’ within the meaning of our Workmen's Compensation Act. R.L., c. 216, § 2. Men, like machines, may suddenly break down. Logically there should be no difference whether the breakdown occurs internally or externally. If strain causes a broken wrist, nobody questions the accidental nature of the injury ‘If instead of the wrist it is an artery that breaks, the occurrence is just as clearly an accident.’ Brown's Case, 123 Me. 424, 425, 123 A. 421, 422, 60 A.L.R. 1293. An accident may be said to arise out of and in the course of the employment if the exertion...