Dustin v. Lewis

• Decision Date: 25 March 1955
• Citation: 99 N.H. 404,112 A.2d 54
• Parties: Maurice P. DUSTIN, Adm'r, v. George and Gladys LEWIS, d/b/a Lewis' Market, et al.
• Court: New Hampshire Supreme Court

Page 54

112 A.2d 54

99 N.H. 404

Maurice P. DUSTIN, Adm'r, v. George and Gladys LEWIS, d/b/a Lewis' Market, et al.

Supreme Court of New Hampshire.

Argued Jan. 5, 1955.

Decided March 11, 1955.

Rehearing Denied March 25, 1955.

Walter D. Hinkley, Lancaster, for plaintiff.

Francis G. Moulton, Littleton, for defendants.

KENISON, Chief Justice.

The definition of a compensable injury relevant to this case appears in Laws 1947, c. 266, § 2, subd. III and reads in part as follows: 'Personal injury, or injury as used in and covered by this chapter shall mean accidental injury or death arising out of and in the course of the employment * * *.' It is agreed that the employee's death arose in the course of his employment but the court found that it did not arise out of his employment. This finding is not to be set aside unless it was clearly erroneous. Romano v. Littleton Construction Company, 95 N.H. 404, 64 A.2d 695; Walter v. Hagianis, 97 N.H. 314, 87 A.2d 154.

The plaintiff particularly challenges the following statement in the court's findings: 'There is a complete lack of evidence as to any work or act of the deceased which may have contributed to his faint.' It is pointed out that one of the doctors gave his 'opinion that the fact that he was in that store that night under the conditions there existing which caused him to faint' and another doctor testified that if the deceased had been at home resting he would probably not have fainted. In view of the medical testimony, it is argued that the court's statement is erroneous and cannot stand. If the statement is taken in isolated context there is force to this argument. However, in the same paragraph, the court had previously noted that evidence as to the cause of deceased's fainting was 'solely from opinions of the medical witnesses.' This indicates that the medical testimony was not ignored even though it was not accepted. Bolduc v. Somersworth Shoe Company, 97 N.H. 360, 363, 89 A.2d 538. Construing the single sentence to which the plaintiff objects in its context, we believe the Court meant that aside from the medical testimony which it was not obliged to believe, Bill v. New England Cities Ice Company, 90 N.H. 453, 10 A.2d 662; Simoneau v. Prudential Insurance Company, 89 N.H. 402, 404, 200 A. 385, there is no evidence in the case that the nature of the deceased's work or the manner in which he was doing it was a contributing cause of the accident. See Rivard v. J. F. McElwain Company, 95 N.H. 100, 101, 58 A.2d 501. Whether the testimony of a layman or an expert is entitled to credence is a matter for the determination of the Trial Court. Ricard v. Prudential Insurance Company, 87 N.H. 31, 173 A. 375, 93 A.L.R. 784; Groulx v. Groulx, 98 N.H. 481, 103 A.2d 188. 'The fact that the testimony was not directly contradicted did not require its acceptance.' Anctil v. Dupont, 96 N.H. 501, 503, 79 A.2d 11, 12.

If the fact-finder had accepted all of the plaintiff's evidence as true and awarded compensation, the authorities indicate that the award would be sustained here. Bohan v. Lord & Keenan, Inc., 98 N.H. 144, 95 A.2d 786; Allison v. Brown and Horsch Insulation Company, 98 N.H. 434, 102 A.2d 493; Bolduc v. Somersworth Shoe Company, supra. But we cannot say as a matter of law after reading the record that it was a required finding that the deceased's injury and death arose out of the employment. Zwiercan v. International Shoe Company, 87 N.H. 196, 176 A. 286. 'The Trial Court heard and observed the parties and their witness and was in a better position to judge their credibility than an appellate court which reads about it.' Ballou v. Ballou, 95 N.H. 105, 58 A.2d 311, 312.

It is the plaintiff's position that even if the Trial Court's findings are justified, compensation is allowable under the idiopathic fall doctrine. Plaintiff's requests for findings based on this theory were denied below. The problem is stated in 5 Schneider, Workmen's Compensation Law (Perm. Ed.) § 1376 as follows: 'Where an employee is seized with an epileptic fit, dizziness or vertigo and falls due to such or other like causes and is injured the question that usually determines whether the injury is compensable is, did the employee's working conditions contribute to the fall and consequent injury or was the accident solely due to the employee's idiopathic condition which might have caused him to fall in his home with the same injurious results? If it is the latter the employer is not liable, if the former he is liable.' In Rhode Island, Indiana, Massachusetts, Ohio and New York compensation has been denied for an idiopathic fall onto a level floor for the reason that the fall is substantially unrelated to the employment. Remington v. Louttit Laundry Co., 77 R.I. 185, 74 A.2d 442; Pollock v. Studebaker Corp., 230 Ind. 622, 105 N.E.2d 513; Cinmino's Case, 251 Mass. 158, 146 N.E. 245, 37 A.L.R. 769; Rozek's Case, 294 Mass. 205, 200 N.E. 903; Stanfield v. Industrial Comm., 146 Ohio St. 583, 67 N.E.2d 446; Andrews v. L. & S. Amusement Corp., 253 N.Y. 97, 170 N.E. 506. Two of the most recent decisions on this controversial question, decided in 1954, have likewise denied compensation. Henderson v. Celanese Corp., 16 N.J. 208, 108 A.2d 267; Riley v. Oxford Paper Co., Me., 103 A.2d 111.

On the other hand there are several jurisdictions which allow compensation for the idiopathic fall onto a level floor for the reason that there is a sufficient causal relation even though the employee's own weaknesses led to the fall. Employers Mut. Liability Ins. Co. v. Industrial Accident Comm., 41 Cal.2d 676, 263 P.2d 4; General Ins. Corp. v. Wickersham, Tex.Civ.App., 235 S.W.2d 215; Savage v. St. Aeden's Church, 122 Conn. 343, ...