Rehearing
Denied Jan. 18, 1935.
Appeal
from District Court, Gallatin County, Sixth District
Benjamin E. Berg, Judge.
Proceeding
under the Workmen's Compensation Act by Mrs. Ethel Davis
Birdwell, claimant, for the death of her husband, Claude E
Birdwell, employee, opposed by the Three Forks Portland
Cement Company, employer. From a judgment reversing the order
of the Industrial Accident Board dismissing the application
and awarding compensation, employer appeals.
Affirmed.
STEWART
Justice.
This is
an appeal in a compensation case arising under the Montana
Workmen's Compensation Act (Laws 1915, c. 96, as
amended).
Claim
was filed with the Industrial Accident Board by Ethel Davis
Birdwell, wife of Claude E. Birdwell, a workman who died
while on duty in the course of his employment as a cement
burner at the plant of the Three Forks Portland Cement
Company, at Trident, Montana. The employer was enrolled under
plan No. 1 of the above act. The claim was resisted, and the
matter came to hearing before the board on November 18, 1932.
At that time the testimony of all the witnesses, except that
of two doctors, was taken at the plant of the employer. By
agreement of counsel the testimony of Dr. Fred F. Attix and
Dr. J. L. Soltero was taken at a later date by deposition at
Lewistown, Montana. The doctors testified as medical experts,
and based their testimony and conclusions very largely, but
not entirely, upon a hypothetical question, framed so as to
tender for their information and consideration the essential
facts of the case already in the record. However, both
doctors knew the deceased in his lifetime, and had treated
him at times previous to his employment at Three Forks. They
were interrogated as to their personal knowledge of him and
his physical condition at such previous times. The facts as
contained in the hypothetical question submitted to the
doctors were evidently deemed by both parties to constitute
the facts of the occurrence under investigation. After a
careful reading of the testimony of the other witnesses as it
appears in the record, we are convinced that the assumption
was correct. We therefore quote the hypothetical question as
and for a statement of the facts of this case:
"Claude
E. Birdwell, the deceased, was employed at Three Forks
Portland Cement Company's plant at Trident, Montana, as
a cement burner. A burner's duties are the supervision
of the fire in the kilns which are used in burning the lime
rock. The kilns are in a large enclosed building containing
three doors, one of which was about thirty feet from the
front of the first kiln where the burners were in the habit
of sitting when temporarily off duty. The testimony of the
witness, Ray Craven, is as follows, to-wit: 'The chute
where the clinkers come from the kiln into the conveyor
down in the pit became plugged, and Mr. Birdwell and I
proceeded to open up the chute as best we could. We tried
punching the clinkers, trying to break through from up
above without success, and then went down in the pit and
tried to hook under and break them, still without success.
Then back up on the kiln room floor, and Mr. Birdwell had
the bar in his hands and was punching the chunks as long as
he could make headway that way. Then he would hold the iron
and I used the sledgehammer on the end of the bar while in
this manner we opened up the chute. This process may have
taken five, ten or fifteen minutes. It was a hot job on
account of the heat from the kiln itself and the hot
material clogged in the bottom of the kiln. We had to get
probably four or five feet for a short time from the kiln.
The closer you got the hotter it is. It is red-hot material
that we were punching. It was considerably warmer where we
were punching the material and down in the pit than it was
outdoors. Mr. Birdwell's condition soon after, from
what he told me, rather than anything I could see from
looking at him, was that he had a severe headache and a
pain in his chest, and felt rotten, and also was sweating.
I was quite warm, sweating profusely, and felt weak and
temporarily exhausted. My physical condition was fine that
day. I suggested baking soda as a relief. We were sitting
on a bench in the doorway in the northwest side of the kiln
room. There was a draft coming in the kiln room through
this door. We were there some several minutes, at least,
Mr. Birdwell looking after the kilns from time to time and
coming over and sitting down beside me and leaning his head
on the trough which takes water from the kiln room sump. He
seemed to be in distress. We were there about twenty
minutes probably, more or less. The time of day, as near as
I can recall it from my schedule of oiling the conveyors,
was about seven o'clock when the chute first burned
off. After that time it is indefinite. I understood it was
eight o'clock when he collapsed or was pronounced dead.
I went over to the office to get soda, and was gone for
some five minutes, and on my way back was told that he was
dead. We went to work about ten minutes
before three o'clock in the afternoon. The deceased
said he had a headache and was constipated. He mentioned to
me that he had taken some sal hepatica and that he had been
taking some aspirin tablets. I saw him take one dose of
Bayer aspirin tablets. How many I do not know.' The
witness J. W. Johns testified: 'When I had gone back to
the front of the kiln to get a drink Mr. Birdwell was back
there after he had been punching out clinkers and was kind
of hot I asked him how he felt. He said he felt that the
heat had gotten him. I got a drink and walked to the feed
end of the kiln and climbed the stairs, and looking back
saw Mr. Birdwell trying to rise from a bench. He slipped
and looked as if he was trying to sit down again, and fell
over the side. I went there, and he was laying down in some
water. I tried to talk to him and he seemed to be trying to
speak to me, but he could not. The blood vessels and
everything was standing out on his head. Large chunks of
red-hot clinkers sometimes clog the feed, and it is
necessary to break these up. They use iron bars about
twenty-five feet long and an inch thick and weighing about
twenty-five or thirty pounds. It is considerably warmer
right in front of the kiln than outside. Where the burners
sit in the doorway of the building there is a considerable
draft. Mr. Birdwell spoke to me about a headache that
afternoon. The doorway where he collapsed was about thirty
feet from the kiln.' The witness John T. Murray
testified: 'That at about 7:30 I was asked to go to the
kiln room and help the boys out, as they were in trouble
over there. When I arrived Mr. Birdwell was kind of on his
hands and knees at the north door, and I said, "How do
you feel?" He was sweating, and he said, "Not
very good." I saw that they had trouble with the
clinkers. It is considerably warmer around the kilns than
outdoors, and in the doorway it is considerably cooler. I
was down in the pit fifteen or twenty minutes shoveling
clinkers.' Now, assuming these facts to be true, what
in your opinion, was the cause of death, Doctor?"
To this
question Dr. Attix answered as follows: "Well, from what
I know previously of Mr. Birdwell's general health, and
one thing and another, and things connected with his life
over a period of ten or twelve years, I would say that it was
probably due to heat stroke or heat exhaustion--exposure to
excessive heat. I base that on the part of this testimony of
Ray Craven, in which he states himself, 'I was quite
warm, sweating profusely, and felt weak and temporarily
exhausted. My physical condition was fine that day.' In
other words, here was a man who admittedly was in an
exceptionally fine state of health, and everything connected
with it, and on that particular day, and yet he felt the heat
connected with that special work that they were doing there
to the extent that he was weak and temporarily exhausted.
Knowing Mr. Birdwell as I do, he is a nervous, apprehensive
individual, and that type of men usually has a vasomotor
apparatus that is not too stable. He would probably feel the
effects of unusual heat more than the average individual
probably, and the fact that he had these symptoms, toxic
symptoms, probably from diseased teeth, and one thing and
another, a year or two previously, which left him in probably
not a first-class shape physically, as far as being able to
resist the effects of heat and cold. I would say that he was
suffering from undue exposure to the avocation or the work he
was doing while he was knocking those clinkers out there for
some five to fifteen minutes. As I understand it, the man had
left Lewistown less than a month previously, and had only
been employed partially, or part time. He went right down
there and went into a class of work probably in which he was
skilled and prepared, yet probably he was not as physically
fit as he would have been if he had been there and had had an
opportunity to have become used to conditions in which he was
working at that time. The heat stroke comes from vasomotor
centers that are in the base of the brain, and when you are
feeling good and functioning well you are able to stand a
certain amount of strain and stress and regulate your system
so that you don't feel those things unduly; just the same
as in the case of Mr. Craven here, who had only a temporary
spell of exhaustion as a result of this exposure. But if you
happen to be a little weak or soft from not having been at
work for some time, probably being thrown into that sort of
exposure would...
