Demagalski v. State Indus. Acc. Commission of Oregon

• Decision Date: 30 July 1935
• Citation: 151 Or. 251,47 P.2d 947
• Parties: DEMAGALSKI v. STATE INDUSTRIAL ACCIDENT COMMISSION OF OREGON.
• Court: Oregon Supreme Court

47 P.2d 947

151 Or. 251

DEMAGALSKI v. STATE INDUSTRIAL ACCIDENT COMMISSION OF OREGON.

Supreme Court of Oregon

July 30, 1935

In Banc.

Appeal from Circuit Court, Benton County; J. T. Brand, Judge.

Proceeding under the Workmen's Compensation Law by Helen Demagalski for the death of her husband, Lawrence Demagalski, against State Industrial Accident Commission. From a judgment of dismissal, claimant appeals.

Affirmed.

F. C. Heffron, of Eugene, for appellant.

Miles H. McKey, Asst. Atty. Gen. (I. H. VanWinkle, Atty. Gen., and Victor R. Griggs, Asst. Atty. Gen., on the brief), for respondent.

KELLY Justice.

Lawrence Demagalski, deceased, was foreman of the State Game Farm near Corvallis in Benton county.

At said farm large numbers of pheasants were confined in pens. On the 14th day of September, 1933, said Demagalski arose at 5 a. m. and went out to the pens to catch and crate pheasants for shipment. In about half an hour said Demagalski returned to the house and shortly thereafter went back to the pens. At about 6 a. m. his wife, the claimant herein, called him to breakfast and he answered. He did not come to breakfast and his wife called again. He then asked her to come to him which she did. He explained to her that he was stooping over catching birds, had become dizzy, and had a headache.

His wife assisted him to the house, put him to bed, and called a doctor. The doctor diagnosed his condition as arteriosclerosis, high blood pressure, and partial paralysis due to cerebral hemorrhage. A week later he died.

The only question is whether his death was the result of a personal injury by accident caused by violent or external means. It is conceded that he was working under the terms of the Workmen's Compensation Law. (Code 1930, § 49-1801 et seq., as amended).

The case was tried to the court without a jury. Claimant contends that the judgment rendered by the trial court is not supported by the findings of fact. Those findings, so far as pertinent to the question involved, are:

"II. That his (Demagalski's) duties under such employment required him to catch pheasants in pens and coops, the pens being large enough to permit his entry and movement conveniently, the coops being small and low and requiring him to stoop, insert his arm, and seize the birds. His duties also required him to crate the birds, and in so doing he was required to handle the crates, weighing up to sixty pounds. While thus engaged in performing his duties he necessarily employed agility and rapid action. He used a net on a pole (which was received in evidence) with which to entrap the birds in the pens. Having caught several birds in the larger pens, he stooped over and caught more birds in the low coops. His activity, as in any such work, resulted in increased bodily temperature and more rapid breathing and heart action. His stooping, as in all such cases, caused what is ordinarily known as a rush of blood to the head. The temperature, breathing, heart action and blood pressure were increased in the sense that they were greater than they would have been had he remained quiet. If Demagalski had remained in bed he probably would not have suffered injury that day. Unknown to himself, Lawrence Demagalski suffered from high blood pressure and hardening of the arteries to a degree amounting to a diseased condition which was in and of itself dangerous to life. This condition existed previous to and at the time of his injury.

"III. That on the 21st day of September, 1933, he was engaged in performing the said duties at the State Game Farm at Corvallis, Benton County, Oregon. While thus engaged, or soon thereafter, and somewhere within an hour after commencing to catch and crate the pheasants, he was found collapsed on one of the coops and unable to walk. While engaged in the aforesaid work, or within a few minutes thereafter, he suffered a cerebral hemorrhage from which he died. The increased activity constituted a releasing and proximate cause which, acting concurrently with his diseased condition, produced hemorrhage and death. Such activity in a well man would have had no injurious effect whatever. In his diseased condition the injury followed as a result of the activity.

"IV. On the said 21st day of September, 1933, while so engaged in performing said duties, Demagalski was performing his ordinary and usual duties in an ordinary and usual manner. With the exception of the cerebral hemorrhage itself, nothing unusual or unexpected happened. No mischance, slip or mishap occurred in doing the acts themselves, said acts being all voluntary, intentional, and done in the manner intended, by ordinary means voluntarily employed. No physical force, object or influence outside of his own physical person acted upon him. His own physical effort did not bring him in contact with any external object, force or influence. The only force used or exerted was his own, with the exception of what we call the force of gravity, operating while crates, birds and net were being lifted at various times."

The learned trial judge, among other things, found as a conclusion of law: "That Lawrence Demagalski, deceased, did not sustain a personal injury by accident arising out of and in the course of his employment caused by violent or external means as alleged in plaintiff's complaint."

In determining whether this conclusion was proper, we must bear in mind that this court is committed to the line of cases which hold that where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen. Dondeneau v. State Industrial Accident Commission, 119 Or. 357, 249 P. 820, 50 A. L. R. 1129.

In the case just cited, it being a case based upon a claim for injury to an eye while claimant was fighting a forest fire, this court called attention to the fact that it could be inferred that the injured eye received an unusually strong blast of some gas aggravated by ashes or cinders and intense heat.

Claimant herein cites Elford v. State Industrial Accident Commission, 141 Or. 284, 17 P.2d 568. There the injury consisted of a rupture of a cancerous growth in the abdomen. This court held that from all the circumstances and testimony, the jury could very well draw the inference that the injury was accidental and that it was not error to submit the cause to the jury under instructions to which there was no exception.

Huntley v. Oregon State Industrial Accident Commission, 138 Or. 184, 6 P.2d 209, also cited by claimant, is based upon a claim because of an abrasion on the heel of claimant. This court held that the rubbing of the leather of a heavy shoe was the accidental cause of the abrasion.

In the case of Armstrong v. State Industrial Accident commission, 146 Or. 569, 31 P.2d 186, there was evidence tending to show that decedent's injury was due to some automobile wheels falling from a pile and hitting him upon the back of the neck and shoulders.

In the case at bar there is an entire absence of any evidence of an accidental cause of decedent's death. He was engaged in catching and crating pheasants. That is what he intended to do and that is what he did. There is no evidence that anything fell upon or against decedent or that anything in use by him failed to function in its normal and customary manner.

We conclude that the learned and experienced trial judge committed no error in his conclusions upon the findings rendered, and that such findings support the judgment of dismissal.

Cases are cited by claimant from the jurisdictions of District of Columbia, Minnesota, Kansas, Colorado, Utah, Maine, Illinois, California, Oklahoma, Idaho, and Washington.

It would unreasonably prolong this opinion to analyze each of these cases. Suffice it to say that the...