Gauvin's Case

Decision Date16 August 1933
Citation167 A. 860
PartiesGAUVIN'S CASE.
CourtMaine Supreme Court

Appeal from Superior Court, Androscoggin County.

Proceedings under the Workmen's Compensation Act by the widow of Joseph Gauvin, deceased. From a decree affirming an award by the commissioner, the employer and insurance carrier appeal.

Appeal dismissed.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Berman & Berman, of Lewiston, for plaintiff.

William B. Mahoney, Eben F. Littlefield, and Theodore Gonya, all of Portland, for defendants.

THAXTER, Justice.

This is a petition under the Workmen's Compensation Act (Rev. St 1930, c. 55, § 1 et seq.) by the widow of Joseph Gauvin who seeks compensation for the death of her husband as the result of an industrial accident The commissioner who heard the case awarded compensation at the rate of $10.67 for the statutory period of three hundred weeks. From the decree affirming such award the employer and insurance carrier have appealed.

The deceased on February 27, 1932, sustained a right inguinal hernia from an accident arising out of and in the course of his employment He was referred by his employer to Dr. Gauvreau, the mill doctor, who on March 15th operated on him to reduce the hernia. This operation was performed under a local anesthetic so that the plaintiff was conscious while it was going on. When the incision was made the appendix appeared through it. The doctor suggested to the patient that it was wise under the circumstances to remove the appendix; and, though the evidence is not altogether clear, the patient was apparently given to understand that such procedure was a usual incident of the hernia operation. Gauvin gave the doctor authority to remove the appendix, and this was done without any charge being made. On March 26th as a result of the operation Gauvin died of acute nephritis and peritonitis.

The commissioner in his findings says: "It is impossible to say whether death would have resulted had the appendix not been removed."

Counsel for the employer claim that this case is governed by Dulac's Case, 120 Me. 324, 114 A. 293. In that case the deceased employee received an epigastric hernia from an industrial accident. He had suffered for some time from an inguinal hernia, and decided to have both of these corrected at the same time. With the surgeon, who was to operate to correct the condition caused by the accident, he made an independent contract for a new consideration for an operation for the inguinal hernia. As a result of the surgery death ensued. It was, however, impossible to determine whether one or...

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5 cases
  • Smith v. Beard
    • United States
    • Wyoming Supreme Court
    • 18 Febrero 1941
    ... ... his pain and suffering. The most plaintiff could receive ... under the compensation law is $ 4,000.00. In the case of ... C. & N.W. R. Co. v. Ott, 33 Wyo. 200, plaintiff, a ... hopeless cripple, was awarded $ 28,174.00. It is no defense ... to one injuring ... ...
  • Hanson v. Norton
    • United States
    • Missouri Supreme Court
    • 17 Marzo 1937
    ... ... Sarber v ... Insurance Co., 23 F.2d 434; Wingate v. Laundry, ... 123 Neb. 844, 244 N.W. 635; Gauvin's Case, 132 Me. 145, ... 167 A. 860; Overbeck v. Nex, 261 Mich. 156, 246 N.W ... 196; Tutino v. Ford Motor Co., 168 A. 749. (4) The ... Missouri ... ...
  • Hughes v. Maryland Cas. Co.
    • United States
    • Kansas Court of Appeals
    • 13 Noviembre 1934
    ... ... jurisdiction over the character of claims sued upon by the ... plaintiff in this case ...          It is a ... well established principle of the common law that if one is ... injured by the negligence of another and these ... ...
  • Steeves v. Irwin
    • United States
    • Maine Supreme Court
    • 15 Septiembre 1967
    ... ... action against the defendant as third party at least 30 days prior to the institution of the present suit, such defenses became issues in the case and were subject to proof at trial without further traverse on the plaintiff's part. The issues in that posture of the case were fully joined ... ...
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