Gotchy v. North Dakota Workmen's Compensation Bureau

• Decision Date: 07 June 1923
• Docket Number: 358
• Court: North Dakota Supreme Court

194 N.W. 663

49 N.D. 915

MRS. FRANK L. GOTCHY, Respondent, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant

No. 358

Supreme Court of North Dakota

June 7, 1923

In District Court, Adams County, Lembke, J.

Proceeding upon appeal from decision of compensation bureau to determine the right and the award of a claimant.

The bureau has appealed from a judgment in claimant's favor.

Judgment modified and proceedings remanded.

Judgment modified with costs to the respondent.

C. A Marr, L. J. Wehe, Phillip Elliot, and M. E. Remmen, for appellant.

" . . Claimant walking along this dark passageway miscalculated his distance, stepped forward and upon the upper end of the incline, and fell forward, because of the comparatively abrupt decline. But, whatever may have been the details of the fall, there is no question that the claimant fell, and there is no doubt that the right femur was broken at the extreme lower end; but the conclusion that this comparatively simple fracture 'necessitated the amputation of his right leg at or about the middle of the thigh' some inches above the fracture, is not sustained by the evidence, and this is the material question in the case. . . . Upon his being taken to the Roosevelt Hospital it was found that he had a osteosarcoma, popularly known as cancer of the bone, at the point of the fracture, and there is no dispute in the evidence that the amputation was made not because of the fracture but because of the disease. Dr. Gillespie testified, and there was no contradiction, that there was no visible injury to the outside of the leg that he could find, and that 'the leg was amputated because the growth was malignant;' that if the accident had occurred, as described, and there had been no sarcoma at that point, no amputation would have been necessary. The diagnosis was made immediately after the accident, and the operation took place within eight days of the diagnosis and the undisputed evidence is to the effect that the operation was for the purpose of curing the diseased condition of the leg, not because of the fracture. Indeed, the fair inference from the evidence is that the fracture was the result of the disease rather than of the accident, though it was inferentially admitted that the false step hastened the break. But the loss of the leg was clearly due to the diseased condition. . . . It is not shown that the claimant was bruised in any way . . . to charge this disease to the industry, simply because it became manifest by reason of this the Workmen's Compensation Law, which sought to insure against inherent risks of certain classes of industry." Brady v. Holbrook, Cabot & Rollins Corporation, 178 N.Y.S. 504.

"It devolved upon the plaintiff to establish the fact that the deceased was not only injured in the manner claimed, but to produce evidence to show that he was injured by an accident that arose out of and in the course of his employment by the defendant. The law does not require that the case shall be established by direct evidence; circumstantial evidence is sufficient. But the circumstantial evidence must be such as would justify an inference that the injury was due to an accident arising out of and in the course of the employment, and must not be left to speculation or conjecture.

The rule is that for statements of an injured person to be admissible in evidence, they must be shown to have been made at a point of time so close to the alleged injury as to be entirely spontaneous." Mayeur v. Crowe Coal & Min. Co. (Kan.) 186 P. 1035; Storm v. Thompson (Iowa) 170 N.W. 403; Smith v. State Workmen's Ins. Fund (Penn.) 105 A. 90; Meredosin Levee & Drainage Dist. v. Indus. Commission of Ill. (Ill.) 120 N.E. 516; Litts v. Risley Lumber Co. (N. Y.) 120 N.E. 730; Woodhall v. Irwin (Mich.) 167 N.W. 845; Parsons v. Ind. Accident Comm. (Cal.) 173 P. 585; Hungerford v. Bonn (N. Y.) 171 N.Y.S. 280; Pace v. Appanoose County (Iowa) 168 N.W. 916; Battey v. Osborne (Conn.) 115 A. Rep. 83.

Patten Hotel Co. v. Milner (Tenn.) 238 S.W. 75; Spring Canyon Coal Co. v. Ind. Comm. (Utah) 201 P. 173; Hunt v. Ind. Ac. Comm. of Cal. 185 P. 215; Central Locomotive & Car Works v. Ind. Comm. (Ill.) 125 N.E. 369; Pocardi v. Ott (W. Va.) 98 S.E. 69; Ohio Oil Co. v. Ind. Comm. (Ill.) 127 N.E. 744; Dochoff v. Globe Const. Co. (Mich.) 180 N.W. 414; Lingley v. T. Firth & Sons (Eng.) W. C. Ins. Rep. 6 Edw. 7.

"Plaintiff began to unload a car of coal for defendant February 21, 1920, and finished the task the next day. He began to unload another car February 23d, 1920, and was injured the following day before he had removed all of the coal. For these services he was paid $ 20 by check of defendant being 25c a ton. About a week earlier plaintiff had unloaded a car of coal for defendant in the same yards. During a year's time previously he had unloaded three or four cars and received 25c a ton. He was entitled to his pay when he unloaded a car and could then get it if he could find defendant's manager at the time. Plaintiff in each instance was employed to unload a particular car of coal. Between jobs he sometimes stayed around defendant's yards, and when a car of coal came in he asked for the unloading, was told the price and performed the service, but during some of the intervals he had worked for others." Bridger v. Lincoln Feed & Fuel Co. (Neb.) 179 N.W. 1020.

"Where the employment for one job cannot be characterized as permanent or periodically regular but occurs by chance, or with the intention and understanding on the part of both employer and employee that it shall not be continuous, it is casual. . . . The work he was to assist in doing was a particular and certain piece of work, which both he and his employer knew would require but a short time. There was nothing in the contract of employment nor in the relations of these parties, then or prior to that time, shown by the evidence, which would indicate that such employment was to be either continuous or recurring." Consumers Mutual Oil Producing Co. v. Indus. Commission, 289 Ill. 423, 124 N.E. 608; Aurora Brewing Co. v. Industrial Board of Ill. 115 N.E. 207; Holbrook v. Olympia Hotel Co. (Mich.) 166 N.W. 876.

F. M. Jackson, for respondent.

"A contention that the amount of an original award under the Workmen's Compensation Law fixed the weekly compensation too high a rate cannot be considered upon certiorari where not urged before the board in hearing." Byle v. Grand Rapids Co. (Mich.) 175 N.W. 416.

"It would be manifestly unjust to permit the case to turn upon a contention not raised at the trial and to which evidence was not directed." Doff's Case (Mass.) 125 N.E. 145.

"Counsel for the plaintiff in error further argues that the industrial board did not have jurisdiction of the proceedings because the record does not show that any notice was given to the employer within thirty days after the happening of the accident nor was any claim for compensation made within six months." Starrs v. Industrial Commission, 121 N.E. 267.

"We think it clear that on this record the plaintiff in error waived the right to raise any question of jurisdiction." American Mill Co. v. Industrial Board (Ill.) 117 N.E. 147.

The law was primarily intended for the protection and benefit of employees and its beneficent purpose should not be defeated by a strict or technical construction that would deprive the employee of compensation to which he would be clearly entitled without contest if he had prosecuted his claim with diligence." Bates & Rogers v. Allen (Ky.) 210 S.W. 467.

"It should not be overlooked that the act, and acts in different states, are universally considered as of a remedial character, the provisions of which should be construed broadly and liberally in order to effectuate their purpose." Donahue v. Sherman (R. I.) 98 A. 109.

The act is to be construed in the light of its purpose, and so far as reasonably may be, to promote the accomplishment of its beneficent purpose. See also Young v. Duncan (Mass.) 106 N.E. 1; Dixon v. Russell (Wis.) 145 N.W. 762; Christopherson v. C. M. & St. P. Ry. Co. (Ia.) 109 N.W. 1077; Keys v. Cedar Falls (Iowa) 78 N.W. 227; Spevack v. Coaldale Fuel Co. (Iowa) 131 N.W. 654; Duffey v. Consolidated Block Co. (Minn.) 124 N.W. 609.

"Complaints of existing pain at a time long subsequent to the date of the injury" held admissible. Ward v. AETNA L. Ins. Co. (Neb.) 118 N.W. 70; Elby v. Ins. Co. 102 A. 209; Western Ass'n v. Munson (Neb.) 103 N.W. 688; St. L. S.W. Ry. Co. v. Moore, 173 S.W. 904; Schock v. Cooling, 141 N.W. 675; Britton v. Washington Water Power Co. 110 P. 20.

In last case declarations made eight days after accident were admitted. Kansas City S. Ry. Co. v. Clinton, 224 F. 897; Johnson v. State, 129 Wis. 146, 108 N.W. 897; Andrzejewski v. Northwestern Fuel Co. (Wis.) 148 N.W. 37; Puls v. Grand Lodge, etc. 13 N.D. 559; Ins. Co. v. Mosley, 75 U.S. 397; First Nat. Bank v. Indus. Commission (Wis.) 154 N.W. 847; Murphy v. George Brown Co. (N. J.) 103 A. 28; Southwestern etc. Co. v. Owen (Tex.) 198 S.W. 662; Patterson v. Ocean Accident Co. 25 App. D. C. 46; Starr v. Aetna Life Ins. Co. 83 P. 113; Vicksburg Railroad Co. v. O'Brien, 119 U.S. 99; Wigmore, Ev. § 1750; Mitchum v. State, 11 Ga. 625; Carr v. State, 43 Ark. 104; Travelers' Ins. Co. v. Sheppard, 85 Ga. 751; Retmier v. Cruse (Ind.) 119 N.E. 32; Van Keuren v. Dwight Devine & Sons, 165 N.Y.S. 1049; See cases cited in 15 N. C. C. A. 632; 17 N. C. C. A. 864; Schroetke v Jackson-Church, 193 Mich. 615; Indian Creek Coal Co. v. Calvert (Ind.) 119 N.E. 519.

In Utah Copper Co. v. Industrial Commission (Utah) 193 P 25, under a statute excepting persons, "Where employment is but casual or not in the usual course," etc., the court held that the employment was not "casual" under the following...