Cain v. C. C. Anderson Co.

• Decision Date: 28 January 1943
• Docket Number: 7051
• Citation: 64 Idaho 389,133 P.2d 723
• Parties: CATHERINE A. CAIN, Surviving widow on her own behalf, and on behalf of all other dependents of Donald E. Cain, deceased, Respondent, v. C. C. ANDERSON COMPANY, a corporation, employer, and IDAHO COMPENSATION COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

133 P.2d 723

64 Idaho 389

CATHERINE A. CAIN, Surviving widow on her own behalf, and on behalf of all other dependents of Donald E. Cain, deceased, Respondent, v. C. C. ANDERSON COMPANY, a corporation, employer, and IDAHO COMPENSATION COMPANY, Surety, Appellants

No. 7051

Supreme Court of Idaho

January 28, 1943

WORKMEN'S COMPENSATION-COMPENSABLE INJURY-CORONARY THROMBOSIS-AGGRAVATION OF PRE-EXISTING DISEASE-PROBABLE CAUSE OF DEATH-BURDEN OF PROOF-EVIDENCE-EXPERT TESTI- MONY-AUTOPSY-NOTICE OF INJURY-FINDINGS OF BOARD-REVIEW.

1. The term "precipitating" in Industrial Accident Board's finding that employee's lifting and moving of piano was a factor in precipitating coronary occlusion, which caused his death, means hastening occurrence of event causing to happen or come to crisis suddenly, unexpectedly or too soon, or accelerating casualty.

2. An employee's death, caused or hastened by heart trouble precipitated, accelerated or aggravated by his moving of piano, was compensable under Workmen's Compensation Law though he suffered from serious heart ailment predisposing him to coronary occlusion, from which he might or would have died within a week or year.

3. A workman's death from coronary thrombosis or occlusion caused by overexertion as result of accident in course of employment, is compensable under Workmen's Compensation Law.

4. The Industrial Accident Board's fact findings, supported by any competent substantial evidence, are conclusive on appeal to Supreme Court.

5. More weight must be given to medical expert's testimony, based on first hand knowledge gained on autopsy examination, as to cause of deceased death, than to testimony of expert whose knowledge is based only on hypothetical facts.

6. In proceeding under Workmen's Compensation Law, claimant has burden of establishing probable cause of employee's disability, injury or death.

7. Members of Industrial Accident Board are triers of facts and final judges of weight and credence to be given experts' opinions hypothetically stated in proceedings under Workmen's Compensation Law.

8. Evidence held sufficient to support Industrial Accident Board's findings that employee's lifting and moving of piano increased his blood pressure and was factor in precipitating coronary occlusion, which caused his death, and that such "accident arose out of and in course of his employment."

9. It is not incumbent on widow, claiming compensation under Workmen's Compensation Law for her husband's death nor on her representative, to give notice to employer and insurer of holding of autopsy on deceased's body.

10. Where corporate employer's secretary-treasurer was present when employee died and signed employer's notice of such employee's death, timely notice thereof was given employer, as required by statute. (I.C.A., secs. 43-1202, 43-1205.)

11. "Notice" to employer of employee's death is notice to employer's surety under Workmen's Compensation Law. (I.C.A., secs. 43-1205, 43-1806.)

Appeal from the Industrial Accident Board of the State of Idaho.

Proceedings under Workmen's Compensation Law. From an order of the Industrial Accident Board awarding claimant compensation appellants appeal. Affirmed.

Award of Industrial Accident Board affirmed.

Spencer Nelson and Ralph S. Nelson for appellants.

Notice of injury and claim for compensation not given until forty days after a death allegedly due to an accident and after an autopsy has been held, of which employer and surety were not given notice, is not notice as soon as practicable within the meaning of the Idaho Compensation Law and particularly Sec. 43-1202. The burden of proof is on respondent to show appellants were not prejudiced by lack of notice. (Bodah v. Coeur d'Alene Mill Company, 44 Idaho 680, 258 P. 1079; Wilson v. Standard Oil Company, 47 Idaho 208, 273 P. 758; Eldredge v. Idaho State Penitentiary, 54 Idaho 213; Frost v. Idaho Cold, etc.; 54 Idaho 312; Moody v. Highway District, etc., 56 Idaho 21.)

A man dying at home after lunch as the result of heart trouble of long standing, having performed his work in the regular manner that morning helping three other men move a piano, one of his main jobs being the delivery of heavy merchandise, does not die as the result of an accident within the meaning of the Idaho Compensation Act. (Croy v. McFarland Brown Lbr. Co., 1 P.2d 189, 51 I. 32; Knight v. Youngkin, 61 Idaho 612; Kahonis v. Ohio Match Company, etc., filed July 10, 1942; Coors Porcelain Company v. Grenfall, 121 P.2d 669 (Jan. 19, 1942); Hamer v. Rishel et al., 24 A.2d 664 (Feb. 28, 1942).

E. B. Smith and Robert I. Troxell for respondent.

A report or notice of the employer to the Board of the death of an employee, required by statutes, is prima facie evidence that the accident and injury occurred as reported and is sufficient to support a finding that the injury arose out of and in the course of employment. (I. C. A., Sec. 43-1801; Stover v. Washington County, (Idaho) 118 P.2d 63; Sater v. Home Lumber & Coal Co., (Idaho) 126 P.2d 810; Reck v. Shittlesberger, (Mich.) 148 N.W. 247; Stockley v. School Dist. No. 1 of Portgage Tp., (Mich.) 204 N.W. 715.)

No statutory duty exists on the part of a dependant of a deceased workman to notify the employer of a postmortem examination of decedent's body. Consequently prejudice cannot be urged. (Golden v. Wilson & Co., (Kan.) 281 P. 860.)

More weight must be given to the testimony of an expert who testifies from first hand knowledge, such as that gained on autopsy examination, than will be given to one who testifies only on a hypothetical state of facts. (Aranguena v. Triumph Min. Co., (Idaho) 126 P.2d 17, and cases therein cited.)

Where a weakened, abnormal or diseased condition of a workman is aggravated and accelerated by accidental injury arising out of and in the course of employment, compensation must be paid for his resulting incapacity; nor will a showing of disease, abnormality or previous weakness of the injured part deprive a claimant of the right to recover compensation where the injury aggravates and accelerates the previous weakness or disease. (Howard v. Texas Owyhee Mining & Development Co., (Idaho) 115 P.2d 749; In re Larson, 48 Idaho 136, 279 P. 1087; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; In re Soran, 57 Idaho 483, 67 P.2d 906.)

BUDGE, J. Ailshie, J. concurs, Holden, C.J., and Givens, J., concur in the conclusion, KOELSCH, D.J., concurring specially.

OPINION

BUDGE, J.

This is an Industrial Accident case on appeal from an award made by the Board in favor of respondent, surviving widow of Donald E. Cain, on her own behalf and on behalf of dependent children of Donald E. Cain, deceased. The pertinent facts, as found by the Board, and disclosed by the record, are substantially as follows:

On the 10th day of January, 1942, one K. F. Stringfield was secretary of appellant C. C. Anderson Company of Caldwell and Nampa; on and for more than one year prior to the 10th day of January, 1942, Donald E. Cain was employed by appellant C. C. Anderson Company of Caldwell, as manager of its electrical appliance department; on said 10th day of January, the manager of appliance department of C. C. Anderson Company of Nampa, with a co-employee, was delivering a piano to a residence in Caldwell; for the purpose of obtaining additional help he requested Donald E. Cain to come to said residence and bring one man with him; pursuant to said request, Donald E. Cain, in a Ford pickup, with a co-employee, drove out to said residence in Caldwell where the piano was to be delivered. On arriving at the designated place, Cain and the other three men proceeded to remove the piano, which weighed 735 pounds, from a Chevrolet pickup truck, in which it had been placed at Nampa, into the residence at Caldwell. The Chevrolet truck had been previously backed up to the curb in front of the residence; the piano was then pushed to the end of the truck floor and from there lifted onto the ground; it was then pushed up along the walk leading to the front doorsteps of the residence. Donald E. Cain was on the front end of the piano and the other three men being at the other corners of said piano; the piano was then lifted up the steps, one at a time. When the piano was lifted over the threshold through the door the rug on the floor started to roll up, whereupon Mr. Johnson who was on the opposite side or corner of the piano from Cain, let go his hold on the piano, bent down, and replaced the rug. Donald E. Cain, at that particular time, lifted through the door the entire front end of the piano. The piano was then placed on a rubber-wheeled dolly and from there wheeled and pushed to the desired position in the house, where it was lifted off the dolly onto the floor, at which time the said Cain remarked, "They are ornery brutes to move, aren't they?" The board found the piano was moved into the residence about 11:00 o'clock a. m. After the piano was unloaded and placed in the residence, Cain, and the other man who accompanied him from the Caldwell store, walked out to the sidewalk and there assisted the driver of the Chevrolet pickup to get the pickup out of snow and ice and onto the road-way by pushing and shoving on the rear end of said pickup; after so doing, Cain and his co-employee returned to the Caldwell store. It appears from the record that Cain was usually talkative and cheerful. After assisting in the moving of the piano it was noticed he was neither talkative nor cheerful while going back to the store, and made comment about the weight of the piano. He appeared tired and had dark circles under his eyes.

Witness Evans was asked and made answer to the following question:

"Q. What remark was that, if you remember?

"A. Something like this--he said 'That was...