Delich v. Lafferty Shingle Mill Co.

• Decision Date: 08 July 1930
• Docket Number: 5533
• Citation: 49 Idaho 552,290 P. 204
• Parties: STEVE DELICH, Appellant, v. LAFFERTY SHINGLE MILL CO., Employer, and STATE INSURANCE FUND, Surety, Respondents
• Court: Idaho Supreme Court

290 P. 204

49 Idaho 552

STEVE DELICH, Appellant, v. LAFFERTY SHINGLE MILL CO., Employer, and STATE INSURANCE FUND, Surety, Respondents

No. 5533

Supreme Court of Idaho

July 8, 1930

WORKMEN'S COMPENSATION LAW-INDUSTRIAL ACCIDENT BOARD-FINDINGS OF FACT-CONCLUSIVENESS-APPLICATION FOR REVIEW.

1. Determination of facts being exclusive province of Industrial Accident Board, its findings on sufficient, though conflicting, evidence will not be disturbed.

2. Industrial Accident Board's granting or denying application for review cannot be disturbed, except for abuse of discretion.

3. Evidence held insufficient to disclose Industrial Accident Board's abuse of discretion in denying application for review for purpose of introducing additional testimony.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Proceeding under the Workmen's Compensation Act to recover compensation for amputation of claimant's foot, opposed by employer and surety. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

E. V Boughton, for Appellant.

In the case of McNeil v. Panhandle Lbr. Co., 34 Idaho 773 203 P. 1068, the court recognized the principle that the Workmen's Compensation Law was based upon, and it was the purpose thereof, as declared by the legislature, to provide sure relief for injured workmen and their families and dependents, citing C. S., sec. 6214, and the court goes on further to say: "The Workmen's Compensation Law like other laws of this state, is to be liberally construed with a view to effect its object and promote justice," citing C. S., sec. 9444, and Fidelity & Casualty Co. v Industrial Acc. Com., 177 Cal. 614, 171 P. 429, L. R. A. 1918F, 856.

We admit the proposition of law that an application for a new trial is addressed to the sound legal discretion of the trial judge, but this discretion is not an arbitrary discretion but calls for the deliberate judgment of the fact finding court. (Stewart v. Stewart, 28 Ind.App. 378, 62 N.E. 1023; Gaar, Scott & Co. v. Nelson, 166 Mo.App. 51, 148 S.W. 417; Johnson v. Grayson, 230 Mo. 380, 130 S.W. 673; Moody v. Reichow, 38 Wash. 303, 80 P. 461.)

In the case of Standard Coal Co. v. Industrial Acc. Com., 69 Utah 83, 252 P. 292, the court holds that an injury reviving existing infirmity is no defense to claim for compensation. In this case the claimant had suffered numerous injuries and it was held that notwithstanding the fact that the employee was more susceptible to injury than he would have been except for the disabilities resulting from previous injuries, still he was entitled to compensation. (Crowley v. City of Lowell, 223 Mass. 288, 111 N.E. 786; Connell v. Gilland Oil Co., 2 La. App. 435; O'Gara Coal Co. v. Industrial Commission, 320 Ill. 191, 150 N.E. 640.)

Scatterday & Stone, for Respondents.

The determination of questions of fact is for the board, and a finding supported by either positive evidence or logically inferred from circumstances will not be disturbed. (Butler v. Anaconda Copper Co., 46 Idaho 331, 268 P. 6; Kaylor v. Callahan Zinc-Lead Co., 43 Idaho 477, 253 P. 132; C. S., sec. 6270; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Larson v. Blackwell Lumber Co., 48 Idaho 136, 279 P. 1087; Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515.)

A hearing before the Industrial Accident Board should be full and complete, and the board should not permit a second hearing except on a very strong showing. (Taylor v. Blackwell Lumber Co., supra; Flynn v. Carson, 42 Idaho 141, 157, 243 P. 818; Rule 14 of Industrial Accident Board.)

BUDGE, J. Givens, C. J., Lee and Varian, JJ., and Johnson, District Judge, concur.

OPINION

BUDGE, J.

On September 15, 1928, claimant, Steve Delich, had been in the employ of the Lafferty Shingle Mill Company, as a night watchman, for about three months. Twenty years before that his left foot had been amputated approximately two inches in front of the point where the leg joins the foot. As a result of this amputation his foot had assumed an equinus position, that is, it had gradually angulated down in relation to the leg. He had been able to use the foot and leg and engage in ordinary manual labor of a lighter nature. On the night of September 15, 1928, while in the performance of his duties as a night watchman, a shingle-bolt, weighing approximately 100 pounds, fell from a height of two or three feet and struck claimant's left foot, temporarily disabling him for work. Following consultations with a physician and surgeon of his own choosing and treatments to alleviate the condition of the foot due to the bruising it had received, claimant had his foot amputated, as advised by his physician and surgeon.

Through successive hearings before the Industrial Accident Board and district court, claimant sought an award of compensation for disability resulting from the last amputation, contending it was made necessary and grew out of the injury to his foot by the falling shingle-bolt. The claim was disallowed, and the proceeding is here for review on appeal. The two material questions for consideration are (1) whether the evidence sustains the findings and conclusions of the Industrial Accident Board that the later amputation was on account of the condition of claimant's foot resulting from the first amputation twenty years before, and that it was not necessary on account of any condition of the foot brought about by its having been struck by the shingle-bolt on September 15, 1928, ergo, claimant was not entitled to compensation for disability caused by the second amputation; (2) whether on application for review before the Industrial Accident Board the proceeding should have been reopened for the purpose of allowing claimant to introduce additional testimony tending to dispute that given by the physician and surgeon who treated claimant's foot and performed the...