Cross v. Hermanson Bros.

• Decision Date: 12 December 1944
• Docket Number: 46610.
• Citation: 16 N.W.2d 616,235 Iowa 739
• Parties: CROSS v. HERMANSON BROS. et al.
• Court: Iowa Supreme Court

16 N.W.2d 616

235 Iowa 739

CROSS v. HERMANSON BROS. et al.

No. 46610.

Supreme Court of Iowa

December 12, 1944

Rehearing Denied Feb. 9, 1945.

Jordan & Jordan, of Cedar Rapids, for appellants.

Morgan J. McEnaney and Senneff & Duncan, all of Mason City, for appellee.

GARFIELD, Justice.

The employee's application to the industrial commissioner for arbitration, evidently prepared on a printed form, stated in substance that: claimant 'sustained a personal injury arising out of and in the course of his employment at Mason City on November 12, 1941, resulting in incapacity; * * * The general nature of the claim is as follows: (State facts how injury occurred.)' from prior to November 12, 1941 down to February 16, 1942, claimant was employed by Hermanson Brothers delivering milk; while so working on or about November 12, 1941, claimant slipped and fell with a case of milk and sprained himself in the small of his back; he noticed a sharp pain in the small of his back extending into his legs; he continued with his work; he was treated for his condition by Dr. Garner, a licensed chiropractor; 'on February 16, 1942, said doctor so treated claimant as to cause a fracture of his first lumbar vertebra and to rupture a blood vessel in his neck; since February 16, 1942, claimant has performed no work and received no compensation due to said injury; * * * his condition is permanent total disability, all caused by said injury; that claimant, due to said injury, has sustained hospital, doctor and medical bills in excess of $700.' The prayer of the application was for an award 'granting such relief as claimant may be entitled to.' The employer answered the application by admitting the employment and denying all other allegations.

On November 10, 1943, the matter was heard by Ralph Young, deputy commissioner as sole arbitrator. The only evidence was that offered by claimant. There was ample evidence that: Claimant steadily employed by Hermanson Brothers' dairy for 17 years, slipped and fell on November 12, 1941, while carrying a case of milk in bottles and sustained a painful injury to his back; he kept on driving the delivery truck, hoping his condition would improve, but hired and paid with his own money a helper to do most of the loading, unloading and delivery of the milk; his condition grew worse until about February 1, 1942, when one of the Hermansons suggested he go to a doctor for treatments 'and we will see it is taken care of'; claimant then went to Dr. Garner, a chiropractor whose office was just across from the dairy, for treatment; on February 16, following the fifth treatment, he suffered intense pain; early the next morning his wife called another physician who sent him to the hospital where X-rays were taken, his condition was diagnosed as a broken vertebra and a body cast was applied. Since that time claimant has been totally disabled.

Whoever prepared the application for arbitration apparently believed claimant's broken vertebra was caused by the chiropractor on February 16 in treating the original injury of November 12. Claimant himself probably so believed when the application was prepared. Hence the clause or sentence in the application which we have italicized. A medical specialist testified, however, that since the X-rays, taken on February 17 and 18, 1942, disclosed calcium at the seat of the fracture, the vertebra must have been broken not less than two or three weeks before the X-rays were taken. But there is ample evidence that the vertebra was broken as a result of the fall on November 12.

Upon this appeal, defendants' sole contention is that since the application alleged claimant's vertebra was broken by the chiropractor on February 16 and the evidence did not sustain this allegation, there was a failure of proof. It is therefore argued that the facts found by the commissioner do not support the award and there is not sufficient competent evidence to warrant the order. See section 1453, Code 1939. We are not disposed to sustain defendants' contention.

At the outset we may observe that if claimant sustained a broken vertebra from the chiropractor's treatment of the original injury, which arose out of and in the course of his employment on November 12, it is compensable unless claimant was negligent in selecting the chiropractor. It is not contended claimant was negligent in this respect. This is true even though the chiropractor may have been negligent in treating claimant. Injury resulting from such treatment is not an independent one but is proximate to the original injury. Paine v. Wyatt, 217 Iowa 1147, 251 N.W. 78; Polucha v. Landes, 60 N.D. 159, 233 N.W. 264, 268; Gunnison Sugar Co v. Industrial Commission, 73 Utah 535, 275 P. 777; Ross v Erickson Const. Co., 89 Wash. 634, 156 P. 153, L.R.A.1916F, 319; Annotation, 39 A.L.R. 1276; 71 C.J., 641, § 395. See also 15 Am.Jur. 495, section 85. Aside from the question of procedure which defendants now raise, claimant was entitled to compensation for his broken vertebra whether it was caused by the chiropractor or by the fall on November 12.

One answer to defendants' contention is that claimant's application to the industrial commissioner is not a formal pleading and is not to be judged by the technical rules of pleading. Nor is the same conformity of proof to allegation necessary as in ordinary actions. 71 C.J. 1005, § 782; 1008, § 784; 1054, §§ 839, 840; Valier Coal Co. v. Industrial Comm., 329 Ill. 139, 160 N.E. 212, 215; Raffaelle v. Industrial Comm., 326 Ill. 166, 157 N.E. 206, 208, 209; Pardeick v. Iron City Eng. Co., 220 Mich. 653, 190 N.W. 719, 720; Palle v. Industrial Comm., 79 Utah 47, 7 P.2d 284, 81 A.L.R. 1222, 1224. See also 28 R.C.L. 824, 825, section 112.

Section 1441, Code 1939, provides, 'neither the board of arbitration nor the commissioner shall be bound by * * * technical or formal rules of procedure; but they shall * * * conduct such hearings * * * in such manner as is best suited to ascertain and conserve the substantial rights of all parties thereto. Process and procedure under this chapter shall be as summary as reasonably may be.' In Flint v. Eldon, 191 Iowa 845, 847, 183 N.W. 344, 345, we approved the statement: 'It was the purpose of the Legislature to create a tribunal to do rough justice--speedy, summary, informal, untechnical.'

We have frequently held, in the absence of a statute similar to section 1441, that the technical rules of pleading do not apply to claims in probate, which are heard in the district court (in probate) and the same conformity of proof to the allegations of such claims is not required as in ordinary actions. In re Estate of Stratman, 231 Iowa 480, 487, 1 N.W.2d 636, 642, and cases cited; Soppe v. Soppe, 232 Iowa 1293, 1297,...