Butler v. Anaconda Copper Mining Co.

• Decision Date: 24 May 1928
• Docket Number: 4897
• Citation: 46 Idaho 326,268 P. 6
• Parties: LEORA BUTLER, Respondent, v. ANACONDA COPPER MINING COMPANY, Employer, and AETNA CASUALTY AND SURETY COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

268 P. 6

46 Idaho 326

LEORA BUTLER, Respondent, v. ANACONDA COPPER MINING COMPANY, Employer, and AETNA CASUALTY AND SURETY COMPANY, Surety, Appellants

No. 4897

Supreme Court of Idaho

May 24, 1928

WORKMEN'S COMPENSATION ACT-EVIDENCE-RES GESTAE-NARRATION OF PAST EVENTS-STATEMENTS OF DECEASED EMPLOYEE-QUALIFICATION OF WITNESS-TIME FOR OBJECTION-INDUSTRIAL ACCIDENT BOARD-FINDINGS OF FACT-CONCLUSIVENESS-RULE ON REVIEW-COURT RULES-FILING OF BRIEFS.

1. Objection that physicians were not shown to possess training and experience necessary to enable them to testify as experts must be made when such testimony is offered, and otherwise is waived.

2. In proceeding under Workmen's Compensation Act (Laws 1917 chap. 81) for compensation for death of employee, testi- mony of widow, coemployees and physician as to statements made to them by deceased from one to six days after injury as to cause and circumstances thereof held incompetent.

3. In proceeding under Workmen's Compensation Act (Laws 1917 chap. 81) to recover compensation for death of employee testimony of widow, coemployees and physician concerning statements by deceased from one to six days after date of injury as to cause and circumstances thereof held not sufficient standing alone to sustain finding that rupture causing death, was traceable to accident.

4. Receipt of incompetent evidence does not require reversal of judgment if there is competent evidence to sustain the finding on which based.

5. In determining whether there is sufficient evidence to support a finding of the Industrial Accident Board in proceedings under the Workmen's Compensation Act (Laws 1917, chap. 81), the same rules are applied by the appellate court as when a verdict of a jury or a finding of the court is reviewed.

6. Determination of questions of fact in proceedings under Workmen's Compensation Act is for Industrial Accident Board, whose finding, supported by positive evidence or logically inferred from circumstances, will not be disturbed on appeal from judgment affirming award.

7. Findings of Industrial Accident Board that rupture, resulting in employee's death, was caused by unusual exertion in lifting wagon-box within scope of employment, held sustained by competent evidence.

8. Costs should not be allowed on affirmance of judgment for respondent's brief, not filed within time provided by supreme court rule 43.

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. O. R. Baum, Judge.

From judgment of district court affirming award of Industrial Accident Board defendants appeal. Affirmed.

Judgment affirmed.

A. M. Waters and Morgan & Smith, for Appellants.

An award cannot be made on hearsay, or other incompetent evidence. If there is incompetent evidence in the record, made at the hearing held by a member of the board, it must be excluded and only competent evidence must be considered in determining the disputed questions of law and fact. ( Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Ericson v. Edward Rutledge Timber Co., 33 Idaho 179, 191 P. 212; Chicago Daily News Co. v. Industrial Commission, 306 Ill. 212, 137 N.E. 797; Englebretson v. Industrial Acc. Com., 170 Cal. 793, 151 P. 421; Reck v. Whittlesberger, 181 Mich. 463, 148 N.W. 247, 52 L. R. A., N. S., 930; Greener v. General Electric Co., 209 N.Y. 135, 102 N.E. 527, 46 L. R. A., N. S., 975; 1 Bradbury's Workmen's Compensation, 2d ed., p. 801; Valentine v. Weaver, 191 Ky. 37, 229 S.W. 1035; Ginsberg v. Burroughs' Adding Mach. Co., 204 Mich. 130, 170 N.W. 15; McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617; Riley v. Carnegie Steel Co., 276 Pa. 82, 119 A. 832; Bolton v. Columbia Casualty Co., 34 Ga.App. 658, 130 S.E. 535; Eastlick v. Southern Ry. Co., 116 Ga. 48, 42 S.E. 499; Employers Assur. Corp. v. Industrial Acc. Com., 170 Cal. 800, 151 P. 423; Smith v. Philadelphia & Reading Coal & Iron Co., 284 Pa. 35, 130 A. 265.)

In a case of this nature, in order to establish by expert medical testimony the connection between an alleged cause and a resulting injury, qualified medical experts must testify that, in their opinion, the injury not only possibly could, but most probably did, result from the alleged cause. ( Fink v. Sheldon Axle & Spring Co., 276 Pa. 476, 113 A. 666; Davis v. Davis, 80 Pa. Super. Ct. 343; Thomas v. State Workmen's Ins. Fund, 280 Pa. 331, 124 A. 499; Gausman v. Pearson Co., 284 Pa. 348, 131 A. 247; Anderson v. Baxter, 285 Pa. 443, 132 A. 358.)

In order for respondent to recover compensation she must prove, by a preponderance of the evidence, that an injury which caused the death arose out of and in the course of the employment of deceased. (C. S., sec. 6217; United States Fuel Co. v. Industrial Com., 310 Ill. 85, 141 N.E. 401; Sparks v. Consolidated Indiana Coal. Co., 195 Iowa 334, 190 N.W. 593; Chicago Daily News Co. v. Industrial Com., supra; Griffith v. Cole Bros., 183 Iowa 415, 165 N.W. 577, L. R. A. 1918F, 923.)

A. A. Mattson and C. E. Melvin, for Respondent.

Declarations of existing pain and suffering, not part of the res gestae, are admissible whenever the bodily or mental feelings of the declarant are material to be proved. (Seeley v. Central Vermont R. Co., 88 Vt. 178, 92 A. 28; Northern P. R. Co. v. Urlin, 158 U.S. 271, 15 S.Ct. 840, 39 L.Ed. 977; Kansas City, M. & B. R. Co. v. Butler, 143 Ala. 262, 38 So. 1024; Nicoll v. Sweet, 163 Iowa 683, Ann. Cas. 1916C, 661, 144 N.W. 615, L. R. A. 1918C, 1099; Duffey v. Consolidated Block Coal Co., 147 Iowa 225, 124 N.W. 609, 30 L. R. A., N. S., 1067; 3 Wigmore on Evidence, 2d ed., p. 686.)

Where a witness' competency to give expert testimony was not questioned on the trial, it will not be considered on appeal; and objection that an answer was not responsive to a question cannot be made for the first time on appeal. (State v. Duff, 144 Iowa 142, 138 Am. St. 269, 122 N.W. 829, 24 L. R. A., N. S., 625; Texas Midland R. R. v. O'Kelley (Tex. Civ. App. ), 203 S.W. 152; Rivers v. Richards, 213 Mass. 515, 100 N.E. 745; Robinson v. Marino, 3 Wash. 434, 28 Am. St. 50, 28 P. 752; Brumley v. Flint, 87 Cal. 471, 25 P. 683; Kent Furniture Co. v. Ransom, 46 Mich. 416, 9 N.W. 454; Keefe v. Norfolk Suburban R. Co., 185 Mass. 247, 70 N.E. 46.)

If there is any competent or substantial evidence in the record to show, or from which it can be reasonably inferred, that the death of deceased was the result of the injury claimed, and that such injury arose out of and in the course of his employment, the award should stand. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Poccardi v. Public Service Com., 75 W.Va. 542, 84 S.E. 242, L. R. A. 1916A, 299; Marshall v. Sheppard, 6 B. W. C. C. (Eng.) 571; Milford Copper Co. v. Industrial Com., 61 Utah 37, 210 P. 993; In re Powers, Op. Sol. Dept. of Labor, 214; Durga v. Williams, 89 Pa. Super. Ct. 516; Moody v. Industrial Acc. Com. (Cal. App.), 260 P. 967; Pfister & Vogel Leather Co. v. Industrial Com., 194 Wis. 131, 215 N.W. 815.)

BAKER, Commissioner. Varian and Brinck, CC., concur.

OPINION

BAKER, Commissioner

The employer, Anaconda Copper Mining Company, and the surety Aetna Casualty and Surety Company, seek to vacate an award of compensation made by the Industrial Accident Board, and affirmed by the district court, to Leora Butler, based upon finding that her husband, Frank M. Butler, died as a result of rupture of artery caused by unusual strain sustained in the scope of his employment.

The defendants' essential contentions are: (1) That physicians who testified on behalf of the claimant and gave expert testimony at the hearing before the commission member were not shown to possess the necessary qualifications; and (2) that the finding of the board to the effect that the rupture which resulted in the death was traceable to an accident is founded upon hearsay testimony alone.

No objection was made at the hearing that the physicians were not shown to possess the training and experience necessary to enable them to testify as experts. Objection must be made at the time such testimony is offered, otherwise it is waived. In the absence of objection it is assumed the adverse party was satisfied the witnesses were competent to testify and their qualifications cannot be later questioned. ( Brumley v. Flint, 87 Cal. 471, 25 P. 683; Robinson v. Marino, 3 Wash. 434, 28 Am. St. 50, 28 P. 752; Texas Midland R. R. v. O'Kelley (Tex. Civ. App.), 203 S.W. 152.)

The testimony of the widow, the coemployees and the physician of statements made to them by the deceased at periods varying from one to six days after the date of injury as to the cause of the injury and the circumstances thereof was not admissible and was not, standing alone, competent or sufficient evidence to sustain a finding. (Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 170 N.W. 15; Smith v. Philadelphia & Reading Coal & Iron Co., 284 Pa. 35, 130 A. 265; Riley v. Carnegie Steel Co., 276 Pa. 82, 119 A. 832; McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617; Bolton v. Columbia Casualty Co., 34 Ga.App. 658, 130 S.E. 535; Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036; Eastlick v. Southern Ry. Co., 116 Ga. 48, 42 S.E. 499.)

The receipt of incompetent evidence does not require a reversal if there is competent evidence to sustain the finding. ( Ginsberg v. Burroughs Adding Machine Co. supra; Valentine v. Weaver, supra; Hinrichs v. Davenport Locomotive Works, 203 Iowa 1395, 214 N.W. 585.) In determining whether there is sufficient evidence to support a finding of the board the same rules are applied by an appellate court as are applied when a verdict of jury or finding of a court is reviewed. The determination of questions of fact is for the board and a finding supported by either positive evidence or...