Derby v. Swift & Co.
| Decision Date | 08 September 1948 |
| Docket Number | Record No. 3382. |
| Citation | 188 Va. 336 |
| Court | Virginia Supreme Court |
| Parties | MILDRED LEE DERBY, ET ALS. v. SWIFT AND COMPANY, EMPLOYER, ET AL. |
1. WORKMEN'S COMPENSATION — Hearsay Evidence — Admissibility. — Hearsay evidence is admissible under the Workmen's Compensation Act and is used as the basis of an award.
2. WORKMEN'S COMPENSATION — Compensable Injury — Hernia — Whether Hernia Constitutes Accident — Case at Bar. — The instant case was an appeal from an order of the Industrial Commission which held that there was no accident arising out of and in the course of the employment. The evidence showed that the employee strained or exerted himself in lifting or moving a loading table and felt a stinging pain in his left side and felt that something pulled loose. There was a sudden, unusual and unexpected rupture of the abdominal wall which produced a hernia. The order was based on the ground that there was no suggestion of an unforeseen or fortuitous circumstance in moving the table, such as a fall or slip or other mishap.
Held: That the fact that the employee did not slip or fall did not prevent the circumstance from being an accident.
3. WORDS AND PHRASES — Accident. — The definition of accident generally assented to is an event happening without any human agency, or, if happening through human agency, an event which, under the circumstances, is unusual and not expected by the person to whom it happens. Where the effect was not the natural and probable consequence of the means employed, and was not intended or designed, the injury resulting was produced by accidental means.
4. WORKMEN'S COMPENSATION — Necessity for Accident — Mixed Question of Law and Fact. — Under the Workmen's Compensation Act whether an employee has suffered an accident or not within the purview of the compensation law is a mixed question of law and fact.
5. WORKMEN'S COMPENSATION — Compensable Injury — Hernia — Whether Hernia Constitutes Accident — Case at Bar. — The instant case was an appeal from an order of the Industrial Commission which held that there was no accident arising out of and in the course of the employment. The evidence showed that the employee strained or exerted himself in lifting or moving a loading table and felt a stinging pain in his left side and felt that something pulled loose. There was a sudden, unusual and unexpected rupture of the abdominal wall which produced a hernia. The order was based on the ground that there was no suggestion of an unforeseen or fortuitous circumstance in moving the table, such as a fall or slip or other mishap.
Held: That under the evidence in the case the employee met his death from injury by an accident arising out of and in the course of his employment. As to him the result was accidental, even though it occurred while he was performing his usual work.
Appeal from an order of the Industrial Commission of Virginia.
The opinion states the case.
Cocke, Cole & Ridley, for the appellants.
Leon T. Seawell and L. T. Seawell, Jr., for the appellees.
Mildred Lee Derby, widow, and William Lile Derby and Mildred Page Derby, children of William Carson Derby, deceased, made application to the Industrial Commission for compensation on account of the death of William Carson Derby, claiming that it resulted from an accident arising out of and in the course of his employment with Swift and Company of Hampton. While at work, Derby, who will be hereinafter referred to as the employee, suffered a hernia, and later had an operation to remove it. He died eleven days after the operation from an embolus occluding the main branch of the pulmonary artery. This is sometimes referred to as "pulmonary embolism."
The case was defended on the ground that there was no accident arising out of and in the course of the employment, and on the further ground that there was no causal relationship between the repair of the hernia by radical operation and the pulmonary embolus which caused death.
The commission found in favor of the claimants on the second ground and there is evidence to support that finding — that is, that there was causal relationship between the operation for the hernia and the embolus which caused death. However, the hearing commissioner denied compensation for the reason that it found that the employee had suffered no accident.
Later the case was heard by the full commission and it affirmed the finding of the hearing commissioner and dismissed the claim.
The employee had been in the employ of Swift and Company at Hampton for some fourteen months prior to the date of his death and had been engaged as a truck driver ice cream salesman. His duties, in part, consisted of helping to load a delivery truck with packages of ice cream from a metal table, on which they were placed for the purpose of being counted and assorted before loading them into the truck. This table weighed 100 pounds and sometimes it became necessary to move it into position as that the ice cream could be more readily loaded into the truck.
The employee, prior to the accident, which occurred on January 29, 1947, had been in good health, having suffered no serious illness nor an operation of any kind. Prior to his employment by Swift and Company he was given a physical examination by the company's physician and at that time, according to the testimony of the physician, there was no evidence of any hernia.
When the employee reached home on the evening of January 29, 1947, he immediately went to bed and told his wife that he had ruptured himself that morning while lifting a loading table at the plant. He also told her that at the time he lifted the loading table he felt "something pull loose" in his left side. When he returned to his work the following morning the reported the occurrence to the superintendent of the company and a report of accident was made out by the superintendent. The employee also told his co-workers that he had hurt his side by lifting the loading table. He continued working each day but was somewhat incapacitated and had to be provided with a helper on the truck. On February 10, 1947, Swift and Company, through its superintendent, sent the employee to the physician of the company for an examination. The physician found that the employee had a left indirect inguinal hernia and advised an operation. The physician testified that hernias are sometimes caused by lifting or straining and that he had no doubt in his mind but that the hernia in this case was caused by a strain. He based his conclusion upon the history of the case given by the patient.
On March 7, the employee was operated on for the hernia at a hospital in Hampton. He stood the operation well and his convalescence was normal until March 18, eleven days after the operation. On that date he was preparing to leave the hospital for home when he was suddenly taken ill and died in a few minutes.
The operating surgeon testified that the employee gave a history in which he stated that on January 29, while lifting a loading table, he felt a stinging pain in his side. The surgeon also testified that the hernia was a small one and of recent origin, and that hernias may be caused by lifting or straining. He stated that an operation for hernia would predispose a patient to embolism. This question was asked the surgeon, "Would an operation such as that for hernia or any other operation predispose a patient to embolism?", and he replied, "Yes, sir, it can."
The hospital chart, which contained the personal history of the case, had the following inscribed thereon, It then shows he was found to have a left inguinal hernia and that he would either have to have surgical repair or wear a truss and that he chose to have surgical repair. Under "Pre-operative diagnosis" on the chart the surgeon wrote, "Left inguinal hernia, traumatic." And he also wrote, under the heading entitled "Post-operative diagnosis", the same words, to-wit: "Left inguinal hernia, traumatic."
A post mortem was performed upon the body of the deceased and it disclosed the cause of death to have been pulmonary embolism.
The insurance carrier in this case paid all of the medical expense incurred by the employee, including the hospital bills and the physicians' charges.
Upon this evidence the hearing commissioner found that there was no accident and denied compensation. In his opinion, he stated this: ...
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