Central Surety & Ins. Corp. v. Industrial Com'n of Colorado

• Decision Date: 22 October 1928
• Docket Number: 12,141.
• Parties: CENTRAL SURETY & INSURANCE CORPORATION et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

271 P. 617

84 Colo. 481

CENTRAL SURETY & INSURANCE CORPORATION et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 12,141.

Supreme Court of Colorado, En Banc.

October 22, 1928

Error to District Court, City and County of Denver; James C Starkweather, Judge.

Proceeding under the Workmen's Compensation Law by Peterson P Fugitt, employee, opposed by Suwyn & Ritsema, employers, and the Central Surety & Insurance Corporation, insurance carrier. An award of the Industrial Commission in favor of employee was confirmed by the district court, and employers and insurance carrier bring error.

Affirmed.

H. Berman and Fred N. Holland, both of Denver, for plaintiffs in error.

William L. Boatright, Atty. Gen., and Otto Friedrichs, Asst. Atty Gen., for defendant in error Industrial Commission.

BUTLER J.

The Industrial Commission awarded workmen's compensation to Peterson P. Fugitt. The district court confirmed the award. The injury suffered by Fugitt was hernia. Section 80 of the Workmen's Compensation Act (C. L. § 4454) as amended by Laws 1923, p. 744, § 14, provides:

'An employee, in order to be entitled to compensation for hernia, must clearly prove, first, that its appearance was accmpanied by pain; second, that it was immediately preceded by some accidental strain suffered in the course of the employment.'

On October 27, 1927, Fugitt was working for plaintiffs in error Suwyn & Ritsema. He was mixing concrete for a walk extending from the sidewalk to the front porch of a house. It became necessary to move the mixer to the rear of the house, to put in the rear walk and the driveway. He and two other men moved it early in the afternoon. It was 'a little to heavy for three men, except on good ground.' The ground at this place was rough. There were only three men to do the work of moving the mixer and lifting the sacks of cement. It was heavy work. Fugitt previously had lifted cement sacks; that was his regular work. He had moved the cement mixer on other occasions, 'usually with the help of two men, or maybe more.' He did not notice, at the moment of lifting, that he had strained himself, but about an hour later he noticed that his abdomen was beginning to get sore. He thought at the time that it was caused by a large belt he was wearing; 'it seemed like the belt was making it sore.' A fellow workman noticed that around quitting time Fugitt was not feeling very good--did not look just right. The abdomen did not get very sore until about the time he went to bed the same day. The next morning he consulted a doctor, who advised him to take treatments to cause the swelling to subside. He followed directions, and on November 2 he was operated upon by another doctor.

A few days before performing the operation, the doctor examined Fugitt and saw a 'bulging out,' or a bump, in the abdomen. The operation disclosed the fact that Fugitt had an umbilical hernia, which, according to the doctor, 'is a hernia that has forced its way through the umbilicus.' The doctor testified that in adults it 'is usually due to a severe strain, usually something that causes an increased intra-abdominal pressure, such as heavy lifting,' and ordinarily is not due to other causes. The doctor found in the umbilicus a small opening, through which a part of the peritoneum had forced its way, 'making a weak point in the abdominal wall.' That part of the peritoneum was about the size of a small marble. The opening in the fascia was large enough to allow the entrance of the tip of the fourth finger. There were no adhesions around the sack. The doctor testified that the abdominal wall is not weakest at the umbilicus; 'that it is as weak at one point where any object leaves the abdominal cavity as it is at another'; that 'the weakness is simply because something has passed through there, laving a tenderness at those points.' Fugitt testified--that he his testimony is not contradicted--that he never before had any such trouble.

1. The facts would seem, not only to justify, but to require, compensation, if the statutory provision quoted above does not forbid. Courts must give effect to that provision, just as they must give effect to other provisions, of the statute; there is no reason, however, for singling out this particular provision, and giving to it, and to it alone, a strict, narrow construction. The Workmen's Compensation Act is highly remedial, beneficient in purpose, and should be given a liberal construction, so as to accomplish the evident intent and purpose of the act. Karoly v. Industrial Commission, 65 Colo. 239, 243, 176 P. 284. In Corpus Juris, title 'Workmen's Compensation Acts,' § 34, it is said that the courts have been practically unanimous in so construing such statutes. In the case of In re Petrie, 215 N.Y. 335, 109 N.E. 549, the court said:

'The statute was the expression of what was regarded by the Legislature as a wise public policy concerning injured employees. Under such circumstances we think that it is to be interpreted with fair liberality, to the end of securing the benefits which it was intedded to accomplish.'

2. The plaintiffs in error assert that there was no evidence that the appearance of the hernia was accompanied by pain. We must keep in mind the distinction between strain and hernia. The former is a cause; the latter, the effect. Hernia is a protrusion of any viscus or tissue through an abnormal opening in the cavity in which it is normally confined. Watson, Hernia. We must also note that the statute requires, not the hernia, but the appearance of the hernia, to be accompanied by pain. Webster's New International Dictionary gives the following definitions:

'Appearance. 1. Act of appearing.'

'Appear. 1. To come or be in sight; to be in view; to become visible. * * * 4. To become visible or clear to the apprehension of the mind; to be knows as a subject of observation or comprehension, or as a thing proved; to be obvious or manifest.'

According to the doctor, the passing of something through the abdominal wall leaves a tenderness. About an hour after the strain, Fugitt noticed that his abdomen was beginning to get sore. Webster's New International Dictionary defines sore as 'painful, thender.' That Fugitt used the word in that sense is clear from the testimony of one of his employers, plaintiff in error Suwyn, that Figuitt told him:

'I noticed, in the middle of the afternoon, a slight pain in my stomach.'

As the hernia was the protrusion of part of the pertioneum through the umbilicus, and as such protrusion leaves a tenderness, and as Fugitt noticed soreness--pain--in his abdomen about an hour after the strain, the commission was justified in finding that the appearance of the hernia was accompanied by pain.

3. Was the hernia immediately preceded by an accidental strain? The plaintiffs in error contend that it was not. Two questions arise: Was there an accidental strain? If so, did it immediately precede the hernia?

(a) What is an 'accidental strain'? The statute does not say 'a strain caused by an accident,' but an 'accidental strain.' Strain is thus defined:

'The physiological effect or injury due to excessive tension or effort.' Standard Dictionary. 'To injure by pressing to excessive effort; distress or harm from overexertion, as, he strained his back.' Id.

'To injure, as in the muscles or joints, by causing to make too strong an effort.' Webster's New International Dictionary.

If a strain is unforeseen, unexpected, and unintended, it is an accidental strain. Even where a statute uses the words 'personal injury or death accidentally sustained,' and 'injury proximately caused by accident,' we held, in Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097, 19 A.L.R. 107, that, where the result was unexpected and unintended, it was an accident, saying that the term 'accident' is often used to denote any unintended and unexpected loss or hurt, apart from its cause. In that case, Carroll, who had organic heart trouble, was engaged in pitching alfalfa hay in an inclosed building.

The air was dust-laden, and this condition, together with the strenuous work in which he was engaged, brought on an attack of heart trouble, causing instant death. At page 475 of 69 Colo. (195 P. 1098) we quoted with approval the following from 25 Harvard Law Review, 340:

'Since the case of Fenton v. Thorley [Appeal Cases 1903, 443], nothing more is required than that the harm that the plaintiff has sustained shall be unexpected. * * * It is enough that the causes, themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected. The test as to whether an injury is unexpected and so if received on a single occasion occurs 'by accident' is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing.'

We then said that:

'This is the rule followed in Fidelity, ect., Co. v. Industrial Accident Commission of California, 177 Cal. 614, 171 P. 429, L.R.A. 1918F, 856. It was there stated that the current of authority is that 'unforeseen, unexpected, and unintended injuries to employés have been classed as 'accidents' and held suffcient to justify awards.''

In Ellermann v. Industrial Commission, 73 Colo. 20, 213 P. 120, where a workman afflicted with heart disease fell dead while moving cement in a wheelbarrow, we held that, if his death was due to overexertion arising out of the employment, and would not have occurred, save for such employment, the overexertion was an accident.

In Andrews v. Industrial Commission, 73 Colo. 456, 216 P. 256, a workman, while digging in frozen ground, bruised his hand. The bruise became infected, and it became necessary to amputate a finger. In the opinion we said:

'It is urged that the

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