Finlayson v. Dowd

• Decision Date: 13 June 1932
• Docket Number: 7275.
• Citation: 243 N.W. 92,60 S.D. 57
• Parties: FINLAYSON v. DOWD et al.
• Court: South Dakota Supreme Court

243 N.W. 92

60 S.D. 57

FINLAYSON v. DOWD et al.

No. 7275.

Supreme Court of South Dakota

June 13, 1932

Appeal from Circuit Court, Moody County; John T. Medin, Judge.

Proceedings under the Workmen's Compensation Act by F. O. Finlayson claimant, opposed by Ed Dowd and another, copartners, doing business under the firm name of Dowd Bros., employers, and the Maryland Casualty Company, insurer. Judgment of the Industrial Commissioner against claimant was reversed by the circuit court, and claim for compensation allowed, and the employers and insurer appeal.

Reversed with directions.

Dwight H. Lloyd, of Flandreau, for appellants.

Rice & Rice, of Flandreau, for respondent.

RUDOLPH J.

This matter was first heard before the Industrial Commissioner who made findings of fact and conclusions of law, and entered judgment against the claimant. An appeal was taken to the circuit court, where the judgment of the Industrial Commissioner was reversed, and the claim for compensation was allowed.

The basis of the claim was a blood poisoning infection. The claimant contends that this infection was the result of two injuries which he suffered while in the employ of the defendants Dowd Bros. One of the claimed injuries was a blister on the hand, the other was a scratch on the hand.

The claimant contends, and in this contention we believe he is correct, that, if the blood poisoning infection is the result of an accidental injury which the claimant received in the course of his employment with Dowd Bros., the claimant is entitled to recover compensation therefor. Edge v. City of Pierre (S. D.) 239 N.W. 191, 194.

The claimant further contends that the facts as found by the industrial commissioner with reference to the injury termed the "blister" establish that this injury was an injury by accident arising out of and in the course of the employment, and that the blood poisoning infection was the natural result thereof. With reference to this claimed injury, the commissioner found that, while the claimant was in the employ of Dowd Bros., as a teamster and laborer, a blister formed on the third finger of his right hand as the result of handling lines while driving a team and handling levers on dump wagons; that the said blister was the result of continuous performance of work in the ordinary manner. The industrial commissioner held that the blister was not an accidental injury; he also held that the claimant had not traced the incapacity resulting from the infection to the blister.

Whether a blister received in the ordinary course of employment which breaks as a result of the work, allowing the entry of a germ and consequent blood poisoning, is an injury by accident, presents an interesting question; under such circumstances the breaking of a blister has been held to be an injury by accident in the following cases: Saddington v. Inslip Iron Co., (Eng.) 10 Butterworths' Workmen's Compensation Cases 624; Scoville v. Tolhurst Mach. Works, 193 A.D. 606, 184 N.Y.S. 608; Western Shade Cloth Co. v. Industrial Comm., 308 Ill. 554, 140 N.E. 45. However, in all of the above cases the evidence established, and it was so found that the blister broke and allowed the entry of the germ and the resultant septic condition. It appears from these cases that the injury by accident consists of the breaking of the blister, rather than the creation of the blister. The breaking of the blister is the injury which makes possible the condition resulting in the incapacity from blood poisoning. In this case the attending physician testified that the germ which caused the infection came from the "outside." We have searched the record and find no evidence to the effect that the blister ever broke to allow any germ to enter from the "outside." We, therefore, refrain from deciding whether the breaking of a blister is an accidental injury within the meaning of our law (see section 9490, Rev. Code 1919), because whether accidental or otherwise, until the proof establishes that the blister broke, the commissioner would be justified in holding (as he did) that the claimant had not traced the incapacity resulting from the infection to the blister. We are of the opinion, therefore, that the result reached by the industrial commissioner, in so far as the blister is concerned was warranted, when viewed in light of the evidence. The claimant relies, to some extent, upon the case of Unkovich v. Inter State Iron Co., 169 Minn. 491, 211 N.W. 683, 685. In that case, however, the question before the court was whether an award made by the commission should be affirmed, and the medical testimony was to the effect that the condition resulting to the claimant from an injury sustained in the course of his employment "would form a site where there would be lower resistance, and that any infection that he [the claimant] might have, the bacteria from that infection would have a better chance of growing at that...