Driscoll v. Jewell Belting Co.

• Decision Date: 01 June 1921
• Citation: 114 A. 109,96 Conn. 295
• Court: Connecticut Supreme Court
• Parties: DRISCOLL v. JEWELL BELTING CO. et al.

114 A. 109

96 Conn. 295

DRISCOLL v. JEWELL BELTING CO. et al.

Supreme Court of Errors of Connecticut.

June 1, 1921

Appeal from Superior Court, Hartford County; William M. Maltbie Judge.

On March 11, 1920, and for several months prior thereto, a contract of employment had been in force between Randall, the deceased, and the Jewell Belting Company. Both parties were subject to the provisions of our Workmen's Compensation Act, and the Jewell Company had complied with the insurance provisions of section 5369, General Statutes.

At about 4 o'clock in the afternoon of March 11th the deceased, while in the course of his employment, was engaged in the operation of a truck, and one of its wheels struck a bolt causing one of the handles of the truck to strike him in the right side. He finished his day's work, but in the night he had a chill. He grew worse, and on March 14th called in a surgeon, Dr. McPherson, who found he was suffering from pneumonia. On March 15th he was taken to the Hartford Hospital, and continued there under the treatment of Dr Cochran until April 7, 1920, when he died. The body was shipped to Boston, where an autopsy was performed by Dr Leary. From the autopsy and from the history of the case Dr Leary reached the conclusion that the deceased died of traumatic pneumonia, and that the injury was the exciting cause of the disease. Three physicians who testified for the defendants, including Dr. McPherson and Dr. Cochran, agree that the pneumonia was of an ordinary systemic infection, and not of traumatic origin. The Commissioner found as a fact that the deceased died of traumatic pneumonia brought on by the injury of March 11th.

The deceased was a brother of the plaintiff claimant. He had made his home with her since the decease of her husband 26 years before, paid her $6 a week for his board, and given her as a " help" $8 additional each week except when he was away at work in the summer of 1918, and when he returned he gave her $150, and during the period he was away from August or September, 1919, to March 11, 1920, when he received his injury, he had sent to the plaintiff $100. Both of these sums were intended by the deceased for the use of the plaintiff in maintaining her home. At other times when deceased was away from plaintiff's home he was accustomed to give to her different sums at irregular times. The Commissioner found that the deceased had for a considerable period prior to his death contributed to the plaintiff an average sum of $6 a week, and that the plaintiff relied upon the deceased at the time of his injury for support to maintain herself in her class and position in life to the amount of $6 a week, and had so relied for a considerable period. Two unmarried children of the plaintiff made their home with her, viz.: William, aged 31, who had been paying his mother $8 a week board, and Frances, aged 29, who had for the past 2 years paid her mother $8 a week for board.

Ralph O. Wells, of Hartford, for appellants.

Thomas J. Molloy, of Hartford, for appellee.

WHEELER, C.J.

The Commissioner found that the plaintiff-claimant was a dependent of the decedent, her deceased brother, and that his decease was due to pneumonia resulting from a traumatism arising out of and in the course of his employment with the defendant Belting Company.

The superior court dismissed the defendants' appeal from the award, and their appeal from that judgment raises two questions:

(1) Was the conclusion of the Commissioner that a causal connection existed between the traumatism and the pneumonia so unreasonable as to constitute legal error?

(2) Was the claimant, a widowed sister of the decedent, a partial dependent of her deceased brother?

Both questions are questions of fact, and the conclusion of the Commissioner is conclusive unless in reaching these conclusions he applied an illegal standard, or drew a conclusion which the subordinate facts do not justify, or found a fact material to this conclusion without evidence or against the evidence. Powers v. Hotel Bond Co., 89 Conn. 143, 152, 93 A. 245.

The respondents have not pursued the practice approved of by us in Atwood v. Conn. L & P. Co., 95 Conn. 669, 112 A. 270, in order to have the facts found by the Commissioner corrected. They have relied upon our reading the evidence as certified and making the corrections desired. The practice is new, and, since the Atwood opinion was handed down subsequent to the taking of this appeal, we shall not at this time enforce the practice approved of in that case, but, in order to do complete justice to all of defendants' claims, we have examined the evidence so certified to ascertain if any of the facts were found without or contrary to the evidence.

Whether there was a causal connection between the traumatism and the pneumonia was a subject of fierce conflict on the part of the doctors who testified. The conclusion of the Commissioner was based upon his acceptance of the opinion of the expert in behalf of the plaintiff instead of that of the experts produced by the defendants. Counsel for the defendants attack the grounds of this expert's opinion as so wholly inadequate and unreasonable as to render his opinion unreasonable and so to constitute an error of law.

An opinion of an expert may be unreasonable because the grounds upon which it rests are so unreasonable as to make it an error of law for a court to base its decision upon the opinion. But in this case the evidence discloses merely a sharp conflict of professional opinion, reasons for and reasons against, a plain case of conflicting evidence. A finding made upon conflicting evidence by a commissioner is in the same position a similar finding would be in if made by the superior court judge. Neither can, except in most exceptional case, be successfully attacked.

A conclusion reached upon comparison and examination of conflicting professional opinion by reliance upon one opinion rather than another can rarely be found erroneous in law in the absence of bad faith. Russo v. Maresca, 72 Conn. 51, 43 A. 552; Nolan v. N. Y., N.H. & H. R. R. Co., 70 Conn. 159, 39 A. 115, 43 L.R.A. 305; Seymour Mfg. Co. v. Derby Mfg. Co., 94 Conn. 311, 342, 109 A. 395.

A finding or a conclusion cannot be held to be erroneous merely because it was based upon the testimony or opinion of one witness in opposition to that of several others testifying to the...