Burton v. Holden & Martin Lumber Co.

• Decision Date: 13 May 1941
• Docket Number: No. 1127.,1127.
• Citation: 20 A.2d 99,112 Vt. 17
• Court: Vermont Supreme Court
• Parties: BURTON v. HOLDEN & MARTIN LUMBER CO. et al.

20 A.2d 99

112 Vt. 17

BURTON

v. HOLDEN & MARTIN LUMBER CO. et al.

No. 1127.

Supreme Court of Vermont. Windham.

May 13, 1941.

Appeal from Commissioner of Industrial Relations, Howard E. Armstrong, Commissioner.

Proceeding under the Workmen's Compensation Act by Harriet T. Burton, widow of Frank F. Burton, deceased, claimant, against the Holden & Martin Lumber Company, employer, and the Travelers Insurance Company, insurance carrier. From an award of the Commissioner of Industrial Relations in favor of claimant, employer and insurance carrier appeal.

Judgment in accordance with opinion.

Argued before MOULTON, C. J, and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

A. F. Schwenk, I. S. Kendall, and Barber & Barber, all of Brattleboro, for plaintiffs.

Osmer C. Fitts, of Brattleboro, for defendant.

SHERBURNE, Justice.

This is an appeal from an award made by the Commissioner of Industrial Relations. The claimant is the widow of Frank F. Burton.

On April 9, 1940, Burton, aged 61, was examined by a physician for hospital benefit insurance, and was found to be in normal condition for a man of his age, and no material hardening of the arteries was observed. On April 11, 1940, he got a sliver in his left thumb while working in the lumber yard of defendant employer. He was first treated by a doctor on April 18 following, who testified that Burton was then suffering from an infection of the injured thumb; that the infection was localized and did not go into his system at any time, and, although serious as far as the function of the thumb was concerned, was not serious as far as his system was concerned; that the thumb healed perfectly well, but continued to be more tender than the other thumb, which was to be expected, inasmuch as there was new scar tissue there and the thumb had gone through a process of inflammation; that ten days to two weeks after the thumb had healed he was again called upon to treat Burton and found that he had difficulty in walking, had been a bit confused, was unable to get about his house without some help, and was in a weakened condition; and that he was taken to the hospital where he remained three weeks until he died of cerebral thrombosis on June 19, 1940. The doctor further testified that in his opinion the infection could have been a possible contributing cause of the thrombosis.

The questions certified for review are:

1. Whether the evidence concerning the alleged causation of death by the injury to decedent's thumb, that the infection was localized and did not go into the system at any time, and that the infection could have been a possible contributing cause of the thrombosis, is legally sufficient to support the finding that the injury to decedent's thumb resulted in his death.

2. Whether on the whole record the determination, ruling and award of the Commissioner are legally warranted.

There are many cases where the facts proved are such that any layman of average intelligence would know, from his own knowledge and experience, that the injuries were the cause of death. In such a case the requirements of law are met without expert testimony. State v. Rounds, 104 Vt. 442, 456, 160 A. 249. But where, as here, the physical processes terminating in death are obscure and abstruse, and concerning which a layman can have no well-founded knowledge and can do no more than indulge in mere speculation, there is no proper foundation for a finding by the trier without expert medical testimony. Ryder v. Vermont Last Block Co., 91 Vt. 158, 167, 99 A. 733; Le-Clair v. Montpelier & Wells River R. R, 93 Vt. 92, 97, 106 A. 587; State v. Rounds, supra; Howley v. Kantor, 105 Vt. 128, 133, 163 A. 628; Laird v. State of Vermont Highway Dept., 110 Vt. 195, 199, 3 A. 2d 552.

The mere fact that the infection in decedent's thumb resulting from the sliver could have been a possible contributing cause of his death, does not alone warrant a finding that it was. Wellman, Adm'r v. Wales, 98 Vt. 437, 440, 129 A. 317; Dooley v. Economy Store, Inc., 109 Vt. 138, 142, 194 A. 375. There must be created in the mind of the trier something more than a possibility, suspicion or surmise that such was the cause, and the inference from the facts proved must be at least the more probable hypothesis, with reference to the possibility of other hypotheses. Boguski, Adm'r v. City of Winooski, 108 Vt. 380, 387, 187 A. 808; Wellman, Adm'r v. Wales, supra; Gero v. John Hancock Mut. Life Ins. Co., 111 Vt. 462, 18 A.2d 154, 161.

The Commissioner recognized that the cause of death was obscure, that expert medical testimony could alone lay a foundation for his award, and that the testimony of the doctor that the infection from the sliver could have been a possible contributing cause of death, without more, was not enough to support an award. But by taking into consideration all of the evidence, not only the expert testimony but also all the circumstances of the case as shown by the evidence, he concluded that he was justified in finding that the sliver was the cause of death.

Since expert evidence that an accident can or cannot cause a certain result may affect the conclusion to be reached (See State v. Noakes, 70 Vt. 247, 255, 40 A. 249; State v. Marino, 91 Vt. 237, 244, 99 A. 882; Baldwin v. Gaines, 92 Vt. 61, 68, 102 A. 338), it follows that in the case of injuries so naturally and directly connected with the accident that proof of causation does not depend upon expert evidence, medical testimony of "possibility" may corroborate the other testimony. But unless the facts, outside such medical testimony, fairly warrant the conclusion that the injury resulted from the accident, causation is not established. Madore v. New Departure Mfg. Co., 104 Conn. 709, 134 A. 259. See, also, Catto v. Liberty Granite Co., 101 Vt. 143, 146, 141 A. 684. A possible cause cannot be accepted as the operating cause unless the evidence excludes all other causes or shows something in direct connection with the occurrence. 20 Am.Jur., Evidence, Sec. 1178; Lewis v. Pennsylvania R. Co., 220 Pa. 317, 69 A. 821, 18 L.R.A., N.S., 279, 13 Ann.Cas. 1142.

The claimant claims that medical evidence of "possibility" is sufficient to...