Campbell v. City of Chamberlain

• Decision Date: 19 January 1960
• Docket Number: No. 9796,9796
• Citation: 78 S.D. 245,100 N.W.2d 707
• Parties: Mrs. Arley J. CAMPBELL, Claimant and Respondent, v. CITY OF CHAMBERLAIN, South Dakota, Employer, and Western Surety Company, Insurer, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 707

100 N.W.2d 707

78 S.D. 245

Mrs. Arley J. CAMPBELL, Claimant and Respondent, v. CITY OF CHAMBERLAIN, South Dakota, Employer, and Western

Surety Company, Insurer, Defendants and Appellants.

No. 9796.

Supreme Court of South Dakota.

Jan. 19, 1960.

Kirby, McDonnell & Kirby, Tom Kirby, Jr., Sioux Falls, for appellants.

M. Q. Sharpe, John W. Larson, Kennebec, for respondent.

SMITH, Judge.

Occlusion of a coronary artery caused the death involved in this workmen's compensation case. The circuit court, on appeal, concluded it was unreasonable for the Industrial Commissioner to find 'that the decedent's work in no manner contributed to decedent's death, under the provisions of the workmen's compensation law'. Whether the circuit court erred in so concluding is the principal question presented on this appeal by the employer and its insurance carrier.

A compensable injury is defined by SDC 64.0102(4) as '* * * only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form except as it shall result from the injury'.

As pointed out in Johnson v. Concrete Materials Co., 70 S.D. 95, 15 N.W.2d 4, the legislature, by re-enacting the foregoing definition in the Revised Code of 1939, is presumed to have approved the previous holdings of this court in Johnson v. La Bolt Oil Co., 62 S.D. 391, 252 N.W. 869 and Meyer v. Roettele, 64 S.D. 36, 264 N.W. 191. In Johnson v. La Bolt Oil Co., [62 S.D. 391, 252 N.W. 871] it was held '* * * it is sufficient that the injury itself is unexpected, and that it is not necessary that the cause of the injury should be untoward and unexpected, occurring without design.' In Meyer v. Roettele it was written, 'We are of the view that a disease may be an 'injury by accident' within the meaning of our statute. The exclusion is of any disease which is not an accidental injury or which does not result from such injury. It is generally recognized that accident as contemplated by the Workmen's Compensation Law is distinguished from so-called occupational diseases which are the natural and reasonably to be expected result of workmen following certain occupations for a considerable period of time. On the other hand, if the element of suddenness or precipitancy is present and the disease is not the ordinary or reasonably to be anticipated result of pursuing an occupation, it may be regarded as an injury by accident and compensable. * * * The inception of the disease under the evidence in the instant case is attributable to the unexpected and undersigned occurrence of the presence of the poisonous toxin and is assignable to a definite time, place, and circumstance.' [64 S.D. 36, 264 N.W. 194.]

These principles are not without application because the injury suffered is but an aggravation of a pre-existing disease or condition. Elmstrand v. G & G Rug & Furniture Co., S.D., 87 N.W.2d 606. However, as indicated by Meyer v. Roettele, supra, it is now settled that the disease, or the aggravation of an existing disease or condition must be assignable to a definite time, place and circumstance. Tennis v. City of Sturgis, 75 S.D. 17, 58 N.W.2d 301 and Elmstrand v. G & G Rug & Furniture Co., supra.

The employer introduced no evidence. We outline the evidence introduced by the claimant.

At the time of his death, Arley Campbell was 70 years of age. In life he was a small, energetic, active individual, weighing about 135 pounds and standing 5 ft. 6 in. For many years he had been superintendent of the water and sewage department of the employer, the City of Chamberlain. As such he had charge of all of the water and sewage systems, and made installations and repairs therein. His crew consisted of several men. Although he did some office work, it was his practice to join his men in doing more or less hard manual labor.

In October 1951 Campbell suffered a coronary thrombosis and was hospitalized for two weeks by their family physician. In January 1952 he complained to that physician of recurrent anginal pain on exertion and glycerine tablets were prescribed. Although he was seen during subsequent years by his physician in connection with other described unrelated ailments, no further complaints were made of trouble with his heart and no additional treatment was given or prescribed. Those closely associated with him at home or in daily work could not recall his complaining of not feeling well or of his taking time off because of illness.

It was his custom to precede his men at work in the mornings, at which time he would operate the pumps which forced accumulated sewage to the treatment plant. On Thursday, November 1, 1956, he reported for work as usual, in apparent good health. He and his crew were then engaged in running some new water and sewer lines. For some portion of that day Campbell operated the digger machine. In midafternoon water was discovered gushing up from a break in the principal twelve-inch main in the heart of the business district. Because of its size, function and location, the break created a very serious emergent situation. By the time valves were closed and machinery moved, it was about six o'clock before the actual work of excavation and repair was under way. It was then freezing cold and a thirty-mile wind was blowing sleet and rain. A thirty-foot trench, six feet deep and six feet wide was sunk through the hard surfaced street. The work was hampered by water which continued to flow into the trench. To make the repair it was necessary to thoroughly remove the rust with a large rattail file, and then to bolt a cumbersome 75-lb. copper sleeve and rubber gasket around the main. Because of his long experience and greater skill, Campbell made the repair with the help of others. To do so, he worked in the ditch in water to his knees for two hours. In addition he had worked with his men in excavating the main. It was about one o'clock a. m. when the repair was completed. Thereafter the men departed but Campbell went to the water plant and operated the pumps for a time. He arrived home about two a. m.

Mrs. Campbell testified that he left home Thursday morning before seven; he was home about an hour at noon; and she next saw him when he came home at two a. m. She let him in and helped him remove his wet clothing. He was wet to the skin above his knees. He looked tired or sick. He was pale as a ghost and his eyes were white. He complained, 'Help me get to bed, I'm froze' and 'I'm just so cold I can't move.' She stayed up and used heating pads in an attempt to warm him as he slept by spells. At six a. m. patrons began to call because they were without water. After having coffee he left the house at 8:30. He was home for two hours at noon and came home for the day at about five o'clock. He put in about the same kind of a day on Saturday, and about two hours on Sunday. On Monday he went to work as usual, and she didn't see him alive again. During the time he was at home during those days he was pale, his eyes did not appear normal--she described them as 'white' or 'glassy'--he was cold to the touch and complained he could not get warm. She said, 'I thought from the way he walked and stooping and held his hands on his abdomen all the time that he was in pain, but he wouldn't admit it. That is, he would say he was better and 'don't worry, I am all right as soon as I get warm." At another point on cross-examination she said, '* * * he said 'the pain is moving to here. I'll be all right as soon as I get warm,' and that's all the answer I could get out of him, and he wouldn't complain.' She said he did not look feverish; she expressed the opinion that he did not have a cold, but continued to complain he could not get warm.

John Graves, who worked under Campbell and had assisted in the work of Thursday, was the only workman to report Friday morning. He described Campbell's work on Friday and Saturday as that of helping around the ditch--(which was not closed until Saturday)--as pushing some dirt around with the tractor. When asked about Campbell's appearance on Friday he said, '* * * he looked natural that Friday yet except just the idea he was catching a cold.' Asked about his appearance on Saturday, he said, 'I just can't remember that far back, but I know he was complaining about catching an awful cold in that ditch there that night before.' He saw him Monday morning at a restaurant where the crew frequently met. Graves said, 'He said he was catching a cold, yes; and he most generally drinks about two cups of coffee at a restaurant, and that morning he didn't only drink one--not even that. He drank half a cup and left it sitting there.' He thought he appeared feverish that morning. When asked how he formed that opinion, he said, 'You can generally tell that on a fellow that's coming down with a bad cold or something.'

Another witness who worked with Campbell testified that he was pale on Friday and complained of being cold, and seemed more pale on Monday. He also testified that his movements had slowed up.

On Monday morning about ten o'clock Campbell had assisted in loading a 150-lb. pressure pump into a truck and had gone into his office. Then minutes later he was found in his desk chair gasping for breath. He was taken to the hospital where he was examined by his family physician. He was unconscious, almost pulseless, and his heart was palpitating. He expired during the examination. No autopsy was performed. The physician signed a death certificate giving coronary occlusion as the cause of death.

As a witness at the hearing before the commissioner the family physician was examined at length on direct and cross-examination with reference to facts revealed by his treatment and examination of Campbell, and as an expert predicated...