Baker v. State Indus. Acc. Commission

• Decision Date: 19 February 1929
• Citation: 274 P. 905,128 Or. 369
• Parties: BAKER v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

274 P. 905

128 Or. 369

BAKER v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

February 19, 1929

Department 2.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Action by Mary M. Baker against the State Industrial Accident Commission, for the death of Frank O. Baker, her husband. Judgment for plaintiff and defendant appeals. Affirmed.

Brown J., dissenting.

Miles H. McKey, Asst. Atty. Gen. (I. H. Van Winkle Atty. Gen., on the brief), for appellant.

E. R. Ringo, of La Grande, for respondent.

BEAN J.

The defendant, State Industrial Commission, appealed from a judgment, based upon the verdict of a jury, in favor of Mary M. Baker, claimant and widow of Frank O. Baker, who died July 16, 1926.

It is conceded in this case that on April 17, 1926, Baker, and his employer, the Coates Driving & Boom Company, a corporation, were under the Workmen's Compensation Act. Or. L. § 6605 et seq. The company was engaged in logging and lumbering operations in Tillamook county. On that date Baker, in the course of his employment, while performing his duty as an employee, undertook to make a coupling between a locomotive engine and a car loaded with logs belonging to the company. While he was thus engaged in coupling the car to the engine, he was caught by a log that extended beyond the end of the car, and, as he did so, his shoulders and chest were severely crushed between the end of the engine and the end of the log, and his left clavicle fractured.

The defendant immediately caused Baker to be placed in a hospital under the care of Dr. R. T. Boals, a physician authorized by the defendant, where he remained as a patient until his death. After he was received at the hospital, Dr. Boals caused an anesthetic to be administered, and reduced the fracture. The bone was splintered, and the surgeon gathered it together the best he could, but on June 21st he found it was necessary to again administer an anesthetic for the purpose of performing an operation to remove a supposed callous around the nerve.

Baker suffered a great deal of pain from the time of the injury, and gradually lost weight and strength. A few days prior to his death, he developed a gastric obstruction in the stomach. To relieve that condition, a third operation was performed under a general anesthetic by Dr. Boals on July 16, 1926, and it was found that Baker was suffering from a cancerous condition of the lower part of the stomach, but that the stomach was not closed, and that it would not have caused the death of Baker for some time, or until he would starve. Baker failed to survive the operation.

It is alleged in the complaint that the condition which prompted the operation of July 16, 1926, was not such as to cause an immediate or sudden death, and was not the cause of the death of Frank O. Baker, but that his death resulted from the accident and injury afterward, and the operations performed and anesthesias administered as a result thereof, which caused his physical condition and the lowered general resistance which resulted from the accident and injury and the operations performed and the anesthesias administered as a result thereof. This allegation is denied by the defendant.

It is the contention of defendant that the accidental injury of April 17, 1926, was not the proximate cause of Baker's death; that, on the other hand, his death was due to an independent intervening cause. The plaintiff maintains the contrary, and that, if it had not been for the accidental injury of April 17, 1926, which arose out of and in the course of the employment of Baker, which is not questioned, he would not have died on July 16th of that year; that, had it not been for the accidental injury mentioned, which lessened the vitality and resistance of Baker and weakened him, and the operations which were necessarily performed, and the anesthesias that were necessarily administered as a necessary result of the accidental injury, Baker would have survived the last operation.

The testimony of Mary M. Baker is to the effect that Frank O. Baker was a man 60 years of age, of good physical condition, weighing about 186 pounds, was strong and rugged at the time of the accident, and had been so for several years; he was actively engaged in work, and at times being required to go about in the timber, and was never under the doctor's care, to her knowledge, prior to the injury; that after the injury he was taken to the hospital, was under the care of Dr. Boals; that his weight went down to about 135 pounds; that he suffered internally all the time, could not read or sit up nor use his left arm; that the second operation was to correct the condition and relieve pain; that the doctor tried to build him up for the third operation; that he had worked every day for years, doing active physical labor; that the last few years preceding his death he had been acting as fire warden during the shutdown.

Hal Bohnenkamp testified, to the effect, that he had known Baker for 21 years; that he was in good health, an active, big husky fellow; that he saw him after the injury July 1 and 3, 1926; he was then in bad condition; he was in pain and was run down.

Mrs. Blanche L. Calverley testified, in substance, that she had known Mr. Baker about a year and a half; that he was quite a large rugged man, engaged in work calculated to promote good health and physical development; that from the date of his injury his suffering was intense.

Dr. Shuster testified to the effect, referring to the operation of July 16, 1926, that a majority of men of good health, strong men, "could easily withstand an operation of that kind; that in a majority of cases it was not such as would cause death in a person otherwise well."

Dr. R. L. Benson, physician and inspector in the University of Oregon Medical School, and who had been professor of pathology in that school about 14 years, testified that he had performed a post mortem examination upon the body of Frank O. Baker about July 17, 1926, and stated in detail that he found, among other things, a "cancer of the pyloric end of the stomach, and evidence of a recent unhealed operation; a prominent and roughening of the left clavicle bone"; that the operation was apparently properly performed; that it was a fairly common operation. To the question:

"Well, Doctor, what I am trying to find out, is whether or not it was the operation itself that caused death, eliminating his other physical conditions resulting from this injury and his weakened condition growing out of that, assuming that he was as well as he was the day he received the injury should the operation not be a success? A. If he was well and strong with no physical disabilities and were subjected to an operation like that, and taking a simple case, the risk would be extremely small in the hands of a skillful operator--the risk to life would be so small I should say it wouldn't, with that type of strong individual, wouldn't reach one per cent.; of course, when we have any disabilities there, when we have some of the conditions that we found here, the risk would be greater and it would be a little difficult to say.

"Q. To what conditions do you refer there, Doctor? A. Cancer of the stomach would, of course, reduce his vitality to a considerable extent; the disease of the coronary arteries of the heart would probaby reduce his resistance to a degree although this wasn't an extreme hardening of these arteries that I found, it was very moderate and ordinarily doesn't cause death, although it is given as one of the causes of death in the regular lists of causes of death. So, of course, the risk to life in an operation of this kind depends upon the various abnormal conditions that are in the body. This man with the cancer of the stomach and even a moderate hardening of the arteries of the heart wouldn't of course be as good a risk as a man who hadn't these diabilities.

"Q. But even under that condition he would and should withstand an operation of that kind, should he not, if he was otherwise healthy? A. They usually do, yes."

Dr. Benson further testified, in effect, that administering the general anesthetic would produce a depletion of the central nervous system; that intense pain over a period of, say, three months would probably lower his resistance; that there was no way of telling how long the cancerous condition had existed, except that it was not a thing that grows very rapidly; that it was probably a matter of several months; that as a rule cancer does not cause death until it becomes general; that the cancerous condition which he described, or the progress of it, was not such as to cause him to believe that Baker died from cancer by itself, or that it would have resulted in his immediate death; and the fact that he was suffering intense pain, after the operation for gastro-enterostomy and the operation resulted unsuccessfully; that the original injury and the fact that he was suffering intense pain, as outlined, would have to be considered as a contributing factor, just to what extent, he could not say; that the cancerous condition was a little over three inches in length, of the lower end of the stomach, a thickening of the wall in the region of the cancer; the whole part of the region was not affected; it went around perhaps two-thirds of the way.

Upon a cross-examination, Dr. Benson, referring to finding the cause of death in an autopsy in answer to the question, "You didn't find a cause?" stated, in part, as follows: "In answer to the one as to finding a cause, I did find not only a cause but several causes here" (meaning causes of death).

The testimony on the part of plaintiff undoubtedly tends to show that the accidental injury to Baker arising out of and in...