Dehn v. Kitchen

• Decision Date: 26 May 1926
• Docket Number: No. 5111.,5111.
• Citation: 209 N.W. 364,54 N.D. 199
• Parties: DEHN v. KITCHEN et al., Workmen's Compensation Bureau.
• Court: North Dakota Supreme Court

54 N.D. 199

209 N.W. 364

DEHN

v.KITCHEN et al., Workmen's Compensation Bureau.

No. 5111.

Supreme Court of North Dakota.

May 26, 1926.

Syllabus by the Court.

The burden is upon the claimant to prove, by a preponderance of the evidence, that the injury for which compensation is claimed was received in the course of the employment.

A proceeding to recover on account of an injury, compensable under chapter 162, S. L. 1919, and amendments thereof is not triable to a jury or de novo in the Supreme Court, and the findings of the trial court are presumed to be correct unless clearly opposed to the preponderance of the evidence.

For reasons stated in the opinion, it is held that the claimant failed to discharge the burden of proof and that the findings of the trial court, to the effect that the disease from which the husband of the claimant died, namely, encephalitis of the lethargic type, was contracted in the course of the employment, are clearly opposed to the preponderance of the evidence.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Proceeding under the Workmen's Compensation Act by Cora A. Dehn for the death of W. F. Dehn, her husband, claimant. From a decision of the Workmen's Compensation Bureau, composed of J. A. Kitchen and others, denying an award, claimant appealed to the district court, and from its judgment for claimant, the Bureau appeals. Reversed, and proceeding ordered dismissed.Scott Cameron, of Bismarck, for appellants.

Harry Lashkowitz and Leland J. Smith, both of Fargo, for respondent.

JOHNSON, J.

This appeal is from a judgment of the district court awarding compensation to the plaintiff. She is the widow of one W. F. Dehn, whose employer had duly complied with the provisions of the Compensation Law (Laws 1919, c. 162).

The Workmen's Compensation Bureau defended on the ground that the claimant's husband did not contract the disease from which he died in the course of his employment. It here insists that the evidence on this point does not support the findings of the trial court; that the employee died from a certain disease; and that his death was not in any legal sense the proximate result of any condition of the employment. Stated in somewhat different terms, the Bureau contends that the undisputed testimony shows that the deceased died from encephalitis-lethargic, or sleeping sickness; that sleeping sickness is a germ disease; that medical science has not, so far, succeeded in isolating this germ; that while it is the prevailing opinion in medicine that the infection enters the brain through the blood stream, the manner in which the germ obtains lodgment in the body, the conditions under which it thrives outside the human body, the period of incubation, and the like, are entirely unknown and are wholly within the realm of pure speculation. From this premise the conclusion is drawn that the finding of the trial court to the effect that death was the “proximate result of the condition” of the employment is speculation and without substantial foundation in the evidence; that the testimony affirmatively discloses that any conclusion with respect to the origin of the germ which brought on the fatal disease would be a mere guess.

William F. Dehn died April 20, 1923, after an illness of about three days. For many days prior to his death he had been in the employ of a firm of contractors which had duly complied with the Compensation Law. The deceased was a carpenter. He had been engaged in doing some work in connection with the remodeling of a hotel in Fargo and a café maintained in connection therewith. The café is described in the testimony as the Blue Bird Café. It appears that he had also been working on two other and different buildings in the city of Fargo. To all appearances, he was in good health up to April 16, when he complained that his head felt “stuffed”; on the night of the 17th, he complained of being tired, and on the 18th was unable to go to work. In the forenoon of the 18th, a physician, Dr. Haugen, was called, and found the decedent in a semicomatose condition, whereupon the patient was removed to a hospital and treatments administered. The medical treatments were wholly ineffectual, and the patient died on the evening of the 20th, the third day after the physician was called. Two physicians testified, and they agree that he died of a form of encephalitis of the lethargic type, commonly known as sleeping sickness.

The testimony of the medical witnesses is to the effect that this disease is an infection of the brain brought on by a germ which reaches the brain tissue through the blood stream. There is no evidence that any person afflicted with this disease had been on any premises at or near which the decedent worked, or that he had, as far as known, been in any manner directly or indirectly exposed to the infection.

The doctors agree that the disease from which the claimant's husband died was sleeping sickness of a certain type. Dr. Haugen testified for the plaintiff, and it is largely upon his testimony that the plaintiff relies. Omitting preliminaries, the testimony of this witness with respect to the circumstances of the employee's death, the disease and its nature, may be summarized as follows:

“In the forenoon of April 18, 1924, I was called to the bedside of William F. Dehn. The only subjective symptoms, solicited by questioning, were a dull headache, a stiffness or spastic condition of the muscles, a temperature of 103, slow pulse, about 100, shallow breathing, and slight cyanosis. The patient was in a semicomatose condition. I then diagnosed his condition as a cerebral infection of unknown bacteria, the bacteria not having been isolated by the medical profession. I cannot, therefore, say specifically to what the infection was due. A cerebral infection is not always due to the same cause; infection results from the infusion of bacteria into the brain tissue. Most of the cerebral infections are due to bacteria, to our knowledge. There are various infections caused by known bacilli or original pus germs, and then there are supposed infections caused by unknown bacilli.

Q. Well, now; how do you classify the disease that Mr. Dehn had? A. Tentative diagnosis in my estimation was classified as acute cerebral infection by unknown bacillus.

Q. It is then one of those infections that medical science knows little about; is that it? A. I believe it would be.”

As to the channels through which the various infections may occur, the doctor testified:

“Infections could enter the body through inoculations, by food directly, by inoculations by needles or instruments, through the air passages and the digestive tract. This is true of infections in general. The particular infection from which Dehn suffered I hardly think would be obtained in any other or different way. I found no abrasions on the skin. It results that the patient might have been infected, therefore, either through the air passages, or through some food.”

An extended hypothetical question was then put to the witness in which the conditions assumed to have existed in the employment were set out in some detail, such as the fact that the patient had been in good health, except for an attack of the flu some years before; that he had been working about and tearing down old buildings, where there were accumulations of dirt and débris, filth, and dust of all sorts, insect powder, and evidence that the place had been infested with rats; that during the period of employment and some days before he became ill the air he breathed was laden with dust; that no abrasion appeared on the skin; and that the defendant lived at home with his family and took all his meals there; that no similar or like sickness had developed in the family. The witness was then asked:

“What in your opinion, as a physician, would have been the cause of that infection in that particular case?”

The doctor answered:

“My suspicion would be that the infection was carried by the dust inhaled; I mean that would be my judgment.”

Under cross-examination, Dr. Haugen further testified:

That there were “present in every human body, germs which, if present in sufficient quantities, will cause diseases, such as pneumonia, scarlet fever, and many others; that the deceased had all the outward symptoms of encephalitis lethargic; that that disease is a germ disease; that it is an infection of a part of the brain by bacteria; that the germ has not been isolated; that medical science is unable to say from what source or condition the germ may have been acquired by any person suffering from the disease; that there is no more reason to believe that the encephalitis germ is present in dust, dirt, or filth than in city water or in fruit or other forms of food; the germ may be of the class transmitted from one human being to another; and while it is my suspicion or opinion from the history of the case that the deceased became infected by reason of the conditions in the place where he worked, neither I nor any doctor can state that as a positive fact; and I could not say from my observations that there is an absolute causal connection between the disease that caused death and anything that occurred in the course of his employment. The period of incubation of that germ is unknown; whether the period of incubation be a day, a week or a month, we do not know.

Q. So that, by that, Doctor, you must necessarily deal entirely in the field of speculation in determining where the deceased acquired the germs and the resultant disease which caused his death? A. Yes, sir.”

On redirect examination, Dr. Haugen again testified:

“Where there is a general condition of filth and dirt, there one is more likely to find disease; and where there is a condition of cleanliness, one usually finds an absence of those bacteria causing disease.”

On recross-examination, counsel for the Bureau asked the witness the following question:

“Q. There is no presumption that a germ, because it...