Fealka v. Federal Mining & Smelting Co.

• Court: Idaho Supreme Court
• Writing for the Court: GIVENS, J.
• Citation: Fealka v. Federal Mining & Smelting Co., 53 Idaho 362, 24 P.2d 325 (Idaho 1933)
• Decision Date: 06 July 1933
• Docket Number: 5987
• Parties: ANNA FEALKA, Appellant, v. FEDERAL MINING & SMELTING COMPANY, Employer, and AETNA CASUALTY & SURETY COMPANY, Surety, Respondents

24 P.2d 325

53 Idaho 362

ANNA FEALKA, Appellant, v. FEDERAL MINING & SMELTING COMPANY, Employer, and AETNA CASUALTY & SURETY COMPANY, Surety, Respondents

No. 5987

Supreme Court of Idaho

July 6, 1933

WORKMEN'S COMPENSATION ACT-COMPENSABLE INJURY-AGGRAVATION OF PRE-EXISTING DISEASE - TRANSCRIPT ON APPEAL, SUFFICIENCY OF-CERTIFICATES OF TRIAL JUDGE, CLERK AND REPORTER-COURT RULES.

1. Clerk's and trial judge's certificates enumerating various parts of record, and stating that they were all considered by trial court, held sufficient for appeal (I. C A., secs. 11-213, 11-216; Supreme Court Rules 21, 31).

2. Certificate of stenographic reporter for industrial board that transcript of evidence is full, true and correct is sufficient to show that record on appeal from board to district court is complete, in absence of showing that record is incomplete (I. C. A., sec. 43-1409).

3. District court clerk's enumeration in detail of complete record accompanied by judge's certificate that such constitute all papers and files considered by him presents to reviewing court sufficient record to justify consideration of appeal (I. C. A., sec. 43-1409).

4. That mine employee's blood vessels were weakened by disease would not prevent recovery for his death, if strain broke vessels and caused hemorrhage.

5. Evidence established that mine employee's cerebral hemorrhage resulting in death was caused by strain when putting loaded ore car back on tracks, so as to render his death compensable.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. Albert H. Featherstone, Judge.

Proceeding under the Workmen's Compensation Law. Judgment for defendants. Reversed.

Judgment reversed, with instructions. Costs to appellant. Petition for rehearing denied.

Gray &amp McNaughton, for Appellant.

Rending a muscle or breaking a blood vessel, though ever so small but resulting in serious injury, is an accident. (McNeil v. Panhandle L. Co., 34 Idaho 773, 203 P. 1068; Butler v. Anaconda Copper M. Co., 46 Idaho 326, 268 P. 6; In re Larson, 48 Idaho 136, 279 P. 1087; Ramsey v. Sullivan Min. Co., 51 Idaho 366, 374, 6 P.2d 856.)

C. W. Beale and R. M. Cummins, for Respondents.

The evidence does not establish any connection between the work that John Fealka performed in tramming muck or in pushing a muck car in stope No. 5 on the fifth day of January, 1932, and his death. (Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 39, 1 P.2d 189; Wells v. Robinson Const. Co., 52 Idaho 562, 16 P.2d 1059, 1061.)

GIVENS, J. Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

Appellant, widow of John Fealka, applied for, and was by the Industrial Accident Board granted, compensation for the death of deceased, which award was on appeal to, set aside by, the district court, from which judgment this appeal is taken.

Respondents' motion to dismiss the appeal because of no certificates complying with secs. 11-213 and 11-216, I. C. A., and Rules 21 and 31 of this court, is not well taken, since the clerk's and trial judge's certificates are sufficient, enumerating the various parts of the record and stating that they were all considered by the trial court.

While orderly procedure requires that the record on appeal from the board to the district court should be complete, and so certified, the statute, sec. 43-1409, makes no specific provision therefor, but in the absence of any showing or contention that the record is incomplete, the certificate of the stenographic reporter for the board that the transcript of the evidence is full, true and correct is sufficient as to that, and the clerk of the district court enumerates in detail a complete record, accompanied by the judge's certificate that such are all the papers, files, etc., considered by him, and thus there is presented to us a sufficient record to justify us in considering the appeal. The motion to dismiss is therefore denied.

John Fealka was employed by respondent Federal Mining & Smelting Company to distribute steel throughout the mine, but on January 5, 1932, was ordered by a shift boss to help push some loaded ore cars from where they were loaded to the shaft.

There was evidence, though denied in part, that the track was out of shape and that one track was lower than the other, and the witness Levi testified that it was extremely difficult for him to push the cars alone, and that a shift boss had to help him with several of them, and he in turn helped the deceased. The deceased pushed the car alone for about two hours, and Levi helped him when he could push them no farther. It appears that the loaded car weighed approximately two or two and one-half tons. At one time the switch was not properly turned, and the car ran off the track, and they all (including deceased) worked to put it back. After deceased returned to his own work he was found talking in a foreign tongue, and acting queerly, and became unconscious, and a shift boss telephoned the top station to send the cage down, after which deceased was taken to the top of the mine, and over to an ambulance.

The death certificate was admitted without objection, and recited that the cause of death was cerebral hemorrhage, and Dr. Mowery, who made the certificate, testified when on the stand as follows:

"Q. Can you tell definitely, doctor, what was the cause of his death?

"A. I cannot. I don't think it would be possible under these circumstances, but I can state why I drew the conclusion that it was a cerebral hemorrhage, and I don't remember, but some of the men who were with him there said that he had become violent and then subsided and that they had brought him down and that he...