Evans v. Cavanagh

• Decision Date: 28 October 1937
• Docket Number: 6394
• Citation: 58 Idaho 324,73 P.2d 83
• Parties: ELIZA EVANS, Respondent, v. DAN J. CAVANAGH and STATE INSURANCE FUND, Appellants
• Court: Idaho Supreme Court

73 P.2d 83

58 Idaho 324

ELIZA EVANS, Respondent, v. DAN J. CAVANAGH and STATE INSURANCE FUND, Appellants

No. 6394

Supreme Court of Idaho

October 28, 1937

WORKMEN'S COMPENSATION - COMPENSABLE INJURY - AGGRAVATION OF PREEXISTING DISEASE-EVIDENCE - EXPERT TESTIMONY - OPINION EVIDENCE.

1. Expert testimony as to his opinion is not evidence of fact in dispute, but is advisory and admissible only to assist triers of fact to understand and apply testimony of other witnesses.

2. The testimony of an expert depends on (among other things) him confining himself to facts incorporated in question propounded to him, and his testimony is worthless if he does not assume such facts to be true and base his answer thereon.

3. Whether evidence on which expert bases his opinion is true is for triers of fact to decide, and it is not for him to determine the truth or falsity, reliability or unreliability of testimony of other witnesses.

4. Expert should not be asked to base his opinion on testimony of other witnesses heard by him, but on facts which evidence tends to establish, and which are relied on by party propounding question. Question to expert should be hypothetically stated, and his answer should be responsive to it and based on assumption facts stated in it are true.

5. Failure to object to question, although waiver of incompetency of evidence sought to be introduced, does not waive right to question legal effect or sufficiency of it.

6. In compensation case, physician's testimony that in his opinion the most probable cause of employee's death was coronary disease and that he did not hear any evidence presented in case that would indicate to him that death resulted from ruptured aneurysm was not entitled to be given any weight, although admitted without objection, in view of fact that testimony was not based on hypothesis of facts relied on by party propounding question, but involved determination of truth and reliability of testimony of other witnesses.

7. Evidence held to entitle employee's dependent widow to compensation on ground that highway construction employee died from ruptured aneurysm due to increased blood pressure caused by exertion required by performance of his duty of repairing scrapers, as against contention that employee died of coronary disease unconnected with employment.

APPEAL from the District Court of the Fifth Judicial District, for Oneida County. Hon. Jay L. Downing, Judge.

Proceeding for workmen's compensation by dependent widow of deceased employee. Industrial Accident Board entered an order denying compensation. Appeal to the District Court resulted in judgment reversing order of board. Judgment affirmed.

Judgment affirmed. Costs awarded to respondent.

Carroll F. Zapp, for Appellants.

The burden is upon a compensation claimant to prove that death resulted from injury by accident arising out of and in the course of employment. (Sec. 43-1001, I. C. A.; Hawkins v Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189.)

There must be probable not merely possible connection, between cause and effect. (Croy v. McFarland-Brown Lumber Co., supra.)

John W. Clark, D. W. Thomas and Jones, Pomeroy & Jones, for Respondent.

Hypothetical questions "upon evidence" propounded to an expert must require an expert to assume, and not leave it for him to determine whether any of it be true or not; for that would commit to him the function of the jury. (Jones v. Chicago etc. R. Co., 43 Minn. 279, 45 N.W. 444; D'Arcy v. Catherine Lead Co., 155 Mo.App. 260, 133 S.W. 1191.)

An expert witness cannot be asked to give an opinion founded on his understanding of the evidence and error in admitting such evidence is not cured by permitting the witness to show that he relied on evidence of particular witnesses. (People v. McElvaine, 121 N.Y. 250, 24 N.E. 465, 18 Am. St. 820.)

Failure to object to evidence that is inadmissible and incompetent is not a waiver of the right to question its legal effect or its legal sufficiency. (American Coal Briquetting Co. v. Minneapolis St. P. & S. M. Ry. Co., 41 N.D. 381, 170 N.W. 568.)

Breaking of a blood vessel or artery though ever so small, but resulting in serious injury or death is an accident. ( McNeill v. Panhandle L. Co., 34 Idaho 773, 203 P. 1068; Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; In re Larson, 48 Idaho 136, 279 P. 1087; Ramsey v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856.)

Exertion or strain no matter how slight and without regard to previous condition of health which causes a rupture of an aneurysm is compensable. (Fealka v. Federal Min. & Smelting Co., 53 Idaho 362, 24 P.2d 325.)

MORGAN, C. J. Holden and Budge, JJ., concur. Ailshie and Givens, JJ., dissent.

OPINION

MORGAN, C. J.

--The evidence shows, and the industrial accident board found, among other facts, that D. P. Evans, now deceased, was by trade and general occupation a watch repairer; that his height was about five feet five and a half inches and his ordinary weight about two hundred thirty pounds; that he was very fleshy, was thick chested and his abdomen was very thick and fat; that October 10, 1934, he was forty-eight years old; that so far as his wife, respondent above named, knew he was in good health; that during the time of the World War he had influenza, the only sickness he ever had which she remembered; that when working he was a handy man, reasonably fast and worked hard; that in the spring of 1934 he was employed by appellant, Cavanagh, dumping trucks and driving caterpillar tractors on a highway being constructed by the latter, and that he continued in such employment until about June 14, 1934, at or near which time the work was suspended; that October 10, 1934, Cavanagh resumed construction of the highway and employed Evans to work thereon; that the superintendent in charge of construction put him to work, at 1 o'clock of the afternoon of that day, repairing Fresno scrapers which weighed approximately 350 pounds each; that the work consisted of tightening bolts and boring holes through timbers, which were approximately 4 inches thick, to be used as eveners and dump sticks, which timbers were either pine or fir; that there were about seventeen such scrapers to be repaired, ten of which were expected to be put in use the next day; that October 10, was a warm day, and that Evans had not performed any outdoor manual labor since June 14, preceding; that when he reported for work on the afternoon of October 10, he appeared to have taken on more weight and had the color of a man who had not been working outdoors; that he was put to work repairing scrapers because that was considered easier than clearing right of way; that about 1 o'clock of October 10, 1934, Evans commenced repairing the scrapers and in about twenty minutes had, with a brace and a five-eighths inch bit, bored five holes through the timbers; that the timbers on which he was working were placed across other timbers, two or three inches thick, lying on the ground; that it took considerable effort to bore the holes; that after he had worked about twenty minutes he went to a cook shack belonging to his employer, which was near the place he had been working, and asked for soda, saying he had a severe pain in the pit of his stomach and placing his hand on his chest; that he was not vomiting; that, not being able to obtain soda at the cook shack, he went to the home of Thomas C. Roberts, which was approximately a hundred twenty-five steps from the cook shack; that when he arrived there he "looked kind of pale as if he were in great pain" and had beads of sweat on his face, and asked Roberts for soda and water, saying he had an awful pain and put his hand over his stomach; that he was given a teaspoonful of soda and a glass of water which he drank; that he then walked to the north side of Roberts' house and leaned his head against it; that he asked for and was given more water, of which he drank only a little; that a very short time afterward he again called for soda and water, stating he had an awful pain, and putting his hand over his stomach and saying the pain did not move; that he was given a chair and sat down on it and in a very short time fell off the chair with his face toward the ground; that two men raised him up on his knees, held him up and supported him by the arms, one of the men holding up his head; that his face was purple, and he was perspiring while in that position; that within ten minutes from the time he fell off the chair, and while he was being held up and supported as above stated, he died; that after he died his face was a purplish, or dusty, color; that his death occurred within thirty minutes from the time he first reached the Roberts house.

The evidence further shows that shortly after the death of Evans his body was removed to an undertaking establishment in the town of Malad and, about the middle of the afternoon of the day on which he died, his body was embalmed by a licensed and practicing undertaker, who, after injecting embalming fluid through the circulatory system and removing the blood therefrom, inserted a trocar to the left of the median line of the body; that the trocar was eighteen or twenty inches long and was inserted two-thirds of its length or more; that the insertion was made about two inches above and two inches to the right, as the body was faced, of the navel; that when the trocar was inserted a quart and a half or more of blood was aspirated from the body which, according to the testimony of the undertaker, had accumulated just to the right of the median line, below the diaphragm and posterior to the liver.

Shortly after the death of Evans, and prior to...