Hall v. Kornfeld-Harper Well Servicing Co.
Decision Date | 30 September 1944 |
Docket Number | 36199. |
Citation | 151 P.2d 688,159 Kan. 70 |
Parties | HALL v. KORNFELD-HARPER WELL SERVICING CO. et al. |
Court | Kansas Supreme Court |
Syllabus by the Court.
Whether there was competent evidence to support trial court's finding that Hodgkin's disease, with which employee was afflicted, was aggravated and accelerated and his death hastened by an accident which arose out of and in course of his employment presented to Supreme Court a question of law.
In deciding whether there was competent evidence to support trial court's finding in compensation proceeding, Supreme Court would not weigh the evidence, but would examine record to see if there was substantial, competent evidence to support the finding, and in doing so would ignore controverting evidence.
A judgment cannot rest upon mere surmise or conjecture.
An injury which aggravates an existing disease and accelerates the death of the workman is compensable.
Finding that Hodgkin's disease, with which employee was afflicted, was aggravated and accelerated and his death hastened by an accident which arose out of and in course of his employment was sustained by evidence, where there was medical testimony to effect that injury probably had effect of aggravating and accelerating the disease.
Burden is upon employer of proving that he has been prejudiced by lack of notice of accident for which compensation is sought. Gen.St.1935, 44-520.
Evidence supported finding that employer had not been prejudiced by lack of notice of accident which allegedly accelerated disease with which employee was afflicted, thereby hastening employee's death, where it appeared that one of employers learned of employee's fall soon after it occurred. Gen.St.1935, 44-520.
Interest on an award for compensation was not allowable.
1. The record in a death claim under the workmen's compensation act is examined, and it is held: (1) There was sufficient medical evidence to sustain the court's finding that Hodgkin's disease, with which the workman was afflicted was aggravated and accelerated and his death hastened by an accident which arose out of and in the course of his employment; (2) that the medical evidence on that point is not open to the objection that it is too speculative to support the judgment, and (3) that the court correctly found respondent made no showing of prejudice on account of lack of notice of the accident.
2. Interest on an award for compensation is not allowable.
Appeal from District Court, McPherson County; George L. Allison Judge.
Proceeding under the Workmen's Compensation Act by Mattie Hall, on behalf of herself and four minor children, to recover for death of Jesse H. Hall, employee, opposed by the Kornfeld-Harper Well Servicing Company, employer, and Employers Mutual Liability Insurance Company, insurance carrier. From a judgment affirming an award granting compensation, the employer and insurance carrier appeal.
Judgment modified, and as so modified, affirmed.
E. S Hampton, of Salina (C. W. Burch, B. I. Litowich, LaRue Royce and H. H. Dunham, Jr., all of Salina, on the brief), for appellants.
Alden E. Branine, of Newton (James L. Galle, of McPherson, and Ezra Branine, Fred Ice, and John P. Flinn, all of Newton, on the brief), for appellee.
This was a death claim for compensation under our workmen's compensation law. The trial court made findings of fact and allowed compensation. Respondents have appealed and contend (1) there was no substantial, competent evidence to support the material findings of the court, and (2) that respondents were prejudiced for want of statutory notice of the accident.
Respondents were partners in the oil well servicing business. In January, 1942, they employed Jesse H. Hall to operate a servicing unit. This unit had a seat from which he could reach the various levers to operate the unit. It was tied down by a chain to a cement corner three or four feet high to keep it from slipping. On one day early in March, 1942, this chain broke, which permitted the unit to move forward a few feet against the corner of the derrick and the seat to be thrown up as much as eight inches. At the time this happened Mr. Hall was sitting on the unit and was thrown off the seat and into the air and fell as much as four or five feet. Mr. Kornfeld went to the lease between 4:30 and 5 o'clock that afternoon and learned that the chain had broken on the servicing unit. Mr. Hall and Mr. Bartel, his roustabout, were there discussing the matter and Mr. Hall told Mr. Kornfeld what had happened. Mr. Kornfeld testified that Hall said nothing to him at that time about his having received any personal injuries, and that he did not know until about September 15, 1942, that Hall claimed to have been injured at that time.
Hall was severely bruised on the left hip, which troubled him with his work for a time. He had a bruise also on the left arm between the shoulder and elbow about three inches in length and width and a bruise on the calf of his left leg from four to six inches in circumference. His wife noticed no bruise on his neck, but the next morning he complained of its being sore and stiff. Within a few days--less than a week--a lump formed in the gland under the left jaw. His wife had never noticed such a lump there before. Notwithstanding his condition he continued to work until July 26. In the meantime the lump on his jaw increased in size until it was perhaps three inches long and an inch and a half high. It caused him no pain or particular inconvenience for a few months, but perhaps in June it began to be troublesome. The manner or extent of this trouble is not clearly shown by the record. In August, 1942, he was taken to the Halstead hospital, where the gland was removed for diagnosis. Concerning this, Dr. Chesky, who performed the operation, testified:
The trouble was diagnosed as Hodgkin's disease, from which he had suffered prior to March 1, 1942. He worked a few days --not at his regular job--after this operation. He died February 27, 1943. The cause of his death was Hodgkin's disease.
Mattie Hall and Jesse H. Hall had been married twenty-five years. They were the parents of eight children, four of whom were minors. On March 13, 1943, Mattie Hall, on behalf of herself and the four minor children, filed a claim for compensation, claiming that her husband's death was the result of the accident when he was thrown off of the well servicing unit about March 1, 1942. It was stipulated that the parties were operating under the workmen's compensation act and that in the event an award was made the widow and minor children were entitled to full dependency. The questions at issue were whether Hall met with personal injuries by accident arising out of and in the course of his employment which resulted in his death, and was notice of the alleged accident given and claim made as provided by law. The compensation commissioner denied compensation. The claimant appealed to the district court, where, in addition to the formal findings, the court found:
The court's finding that Hall was suffering from Hodgkin's disease at the time of the accident in March 1942, is not controverted. Appellants contend there was no...
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