Almquist v. Shenandoah Nurseries, Inc.

• Decision Date: 03 April 1934
• Docket Number: No. 42358.,42358.
• Citation: 218 Iowa 724,254 N.W. 35
• Parties: ALMQUIST v. SHENANDOAH NURSERIES, Inc., et al.
• Court: Iowa Supreme Court

218 Iowa 724

254 N.W. 35

ALMQUIST

v.SHENANDOAH NURSERIES, Inc., et al.

No. 42358.

Supreme Court of Iowa.

April 3, 1934.

Appeal from District Court, Page County; John P. Tinley, Judge.

This is a proceeding instituted by the claimant, Amanda G. Almquist, to recover compensation from the employer, Shenandoah Nurseries, Incorporated, and the insurer, United States Fidelity & Guaranty Company, for the death of her deceased husband, the employee, which occurred during the employment and arose “out of and in the course of” such “employment.” First the cause was tried before the Honorable Ralph Young, deputy industrial commissioner, sitting as the sole arbiter. He disallowed the compensation. An appeal was taken by the claimant from that ruling to the industrial commissioner, who affirmed the decision of the deputy commissioner, made findings of fact, and law, and denied the compensation. On July 14, 1932, thereafter, the claimant appealed from the ruling of the industrial commissioner to the district court of Page county. There the cause was tried as a compensation proceeding. As a result of the trial, the district court, on June 30, 1933, reversed the ruling of the industrial commissioner, and allowed the compensation. The matter now comes to this court on an appeal by the employer and the insurer from the judgment of the Page county district court.

Modified and affirmed.Huebner & Huebner and H. B. White, all of Des Moines, for appellants.

Ferguson & Ferguson, of Shenandoah, for appellee.

KINDIG, Justice.

Luther L. Almquist was employed by the Shenandoah Nurseries, Incorporated, a defendant and appellant, on the 3d day of May, 1932. He had been thus employed by the nursery company since the preceding March. His employment required that he and other workmen pull “up and shake out” barberry bushes. The barberry bushes were thus pulled up and shaken out by the use of a tree plow which loosened the roots, and then by the men, who would break the dirt apart from the bushes with a spade or stick. Some of the men would shake the bushes and pound them with a stick. Two or more bushes sometimes would be bunched together with a clump of dirt “weighing all the way from a few pounds to 250 pounds.” When the bushes thus clung together and were supported by a clump of dirt, the workmen pulled them apart by hand or pried them apart with a spade. If the bushes were especially large or securely entwined, it required a hard pull to separate them.

Almquist, while working on May 3, 1932, at about 10 o'clock a. m., sank to the ground or “keeled over,” put his hand in the region of his abdomen, and said: “I am sick.” Then he started to an automobile and again sank to the ground. Finally Almquist was assisted into the automobile and driven to his home, where first aid was administered. Thereafter Almquist was taken to the hospital in Shenandoah, where he was operated on by Dr. A. O. Wirsig. The doctor diagnosed Almquist's ailment as that caused by a perforated ulcer. An anesthetic was administered to Almquist and an incision made in “a mid-line” across the region of his stomach and bowels. After opening the abdomen, the doctor examined Almquist's bowels and found them to be normal. It was disclosed, however, by the operation that the anterior part of the stomach was perforated. This perforation was near the outlet. There was only one perforation. Upon further examination the doctor discovered that the perforation was through the center of an old ulcer in the stomach. The ulcer, an inch in diameter, was surrounded by scarred tissue. Because of the perforation, the contents of the stomach had almost completely emptied into the abdominal cavity. After finding that condition, the doctor closed the perforation and sponged out the stomach. Almquist remained at the hospital until May 31st, when he was removed to his home. Subsequently, on June 8th, Almquist returned to the hospital, and remained there until he died on June 17th. His death was caused by “an empyema” due to “pus forming after a complication of perforation” of an ulcer.

The United States Fidelity & Guaranty Company, a defendant and appellant, insured the liability of the appellant Shenandoah Nurseries, Incorporated, under the Iowa Workmen's Compensation Act. Following Almquist's death, his widow, Amanda G. Almquist, the claimant-appellee, asked compensation for the aforesaid injury and death from the Shenandoah Nurseries, Incorporated. Such compensation was refused, and, as said in the preliminary statement, an action was instituted therefor and first tried before the Honorable Ralph Young, deputy industrial commissioner, sitting as the sole arbiter. He denied the compensation. A petition for review was then filed by the claimant with the industrial commissioner, who, regardless of the facts revealed by the record, decided that Almquist's injury and death did not “arise out of and in the course of his employment.” Concerning this the industrial commissioner stated: “The record utterly fails to show or to indicate that at the time of this collapse (when Almquist sank to the ground while working) there was anything in the nature of accident or incident out of the ordinary. * * * There was nothing in the way of a slip, a fall or unusual strain as proximate cause.”

An appeal was taken from that ruling to the district court, where the decision of the industrial commissioner was reversed, and compensation allowed. From the judgment allowing compensation, the appellants appeal.

[1] I. In order for the claimant to obtain compensation for the employee's death, it was necessary for her to prove, by a preponderance of the evidence, that the death was caused by a “personal injury” (see section 1421, 1931 Code) “arising out of and in the course of the employment.” See section 1377, 1931 Code. “The burden is upon the plaintiff (claimant) to establish by a preponderance of the evidence that the injury which he claims caused the disability arose out of and in the course of his employment.” Smith v. Soldiers' and Sailors' Memorial Hospital of Henry County, 210 Iowa, 691, 231 N. W. 490, 491. To the same effect, see Enfield v. Certain-Teed Products Co., 211 Iowa, 1004, 233 N. W. 141. This does not mean, however, that such proof must satisfy beyond a reasonable doubt. Jones v. Eppley Hotels Co., 208 Iowa, 1281, 227 N. W. 153;Flint v. Eldon et al., 191 Iowa, 845, 183 N. W. 344.

[2] It is said by the appellants that the evidence relating to the employee's injury and death is insufficient, or at least in conflict, and therefore the finding of the industrial commissioner cannot be disturbed. If the evidence upon the point in question is in conflict, then, of course, the finding of the industrial commissioner is binding on this court. Enfield v. Certain-Teed Products Co. (211 Iowa, 1004, 233 N. W. 141), supra; Jones v. Eppley Hotels Co. (208 Iowa, 1281, 227 N. W. 153), supra; Belcher v. Des Moines Electric Light Co., 208 Iowa, 262, 225 N. W. 404;Arne v. Western Silo Co., 214 Iowa, 512, 242 N. W. 539;Bushing v. Iowa Railway & Light Co., 208 Iowa, 1010, 226 N. W. 719;Hinrichs v. Davenport Locomotive Works, 203 Iowa, 1395, 214 N. W. 585;Kraft v. West Hotel Co., 193 Iowa, 1288, 188 N. W. 870, 31 A. L. R. 1245.

But, on the other hand, the courts may interfere with the findings of the industrial commissioner under the circumstances authorized by section 1453 of the 1931 Code. According to that section: “Any order or decision of the industrial commissioner may be modified, reversed, or set aside on one or more of the following grounds and on no other: * * * 3. If the facts found by the commissioner do not support the order or decree. 4. If there is not sufficient competent evidence in the record to warrant the making of the order or decision.” So, if, as contemplated by the statute just quoted, the evidence does not sustain the conclusion reached by the industrial commissioner, then the courts may set aside, modify, or reverse his ruling. Arthur v. Marble Rock Consolidated School District, 209 Iowa, 280, 228 N. W. 70, 66 A. L. R. 718;Mallinger v. Webster City Oil Co., 211 Iowa, 847, 234 N. W. 254;Peterson v. Corno Mills Co. (Iowa) 249 N. W. 408;Tunnicliff v. Bettendorf et al., 204 Iowa, 168, 214 N. W. 516. To illustrate, we said in the Tunnicliff Case, reading on page 170 of 204 Iowa, 214 N. W. 516, 517: “There is no merit in appellant's contention that the findings of fact of the industrial commissioner are conclusive. As we have said, there was no conflict in the evidence; and if the facts found by the commissioner do not support the order made by him, or if there is not sufficient competent evidence to support the finding, the order based thereon may be reviewed and set aside by the court. * * * It is only where there is a conflict in the evidence that the findings of fact of the commissioner are conclusive

.” (Italics supplied.) Of course, by the statement in the Tunnicliff Case (204 Iowa, 168, 214 N. W. 516), supra, which we have italicized, this court did not mean to express the idea that the district court could interfere with the findings of the industrial commissioner where the facts are one-sided, but all in favor of his ruling. See Enfield v. Certain-Teed Products Co. (211 Iowa, 1004, 233 N. W. 141) supra.

When the industrial commissioner's finding, however, is not supported by the evidence, and when, on the other hand, the evidence is without conflict and all of it is against the conclusion reached by him, then the courts may interfere and modify, set aside, or reverse his ruling, as shown by the cases above indicated.

[3] II. As suggested in his findings, the industrial commissioner disallowed compensation because he concluded that the claimant had not met her burden of proving that the injury to the employee was caused by “an accident or incident out of the ordinary.” By that statement of the industrial commissioner, it is apparent that he was laboring under the impression...