Hawkins v. Bonner County

• Decision Date: 16 October 1928
• Docket Number: 5076
• Parties: HELEN A. HAWKINS, Guardian of LILLIAN H. ASHLEY, Respondent, v. BONNER COUNTY, IDAHO, a Municipal Corporation, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

271 P. 327

46 Idaho 739

HELEN A. HAWKINS, Guardian of LILLIAN H. ASHLEY, Respondent, v. BONNER COUNTY, IDAHO, a Municipal Corporation, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 5076

Supreme Court of Idaho

October 16, 1928

WORKMEN'S COMPENSATION ACT-DEATH FROM COMPENSABLE INJURY-BURDEN OF PROOF.

1. While cause of employee's death may be shown by circumstantial as well as by direct evidence, burden is on claimant to produce competent evidence that death resulted from injury for which statute provides compensation and it is not sufficient to establish state of facts as consistent with as against right of compensation.

2. Claimant in compensation proceeding held not to sustain burden of showing death resulted from compensable injury where gangrenous foot causing death might, according to physician's testimony, have resulted either from injury to foot in course of employment or from previous diabetic condition.

3. One injured in course of employment was entitled to compensation and necessary hospital and medical attention though death resulted from another cause, and claimant could recover such items of compensation and expense but could not recover funeral expenses.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Chas. L. Heitman, Judge.

From a judgment of the district court awarding compensation under the Workmen's Compensation Act, the defendants appeal. Modified and affirmed.

Judgment affirmed. No costs allowed.

Scatterday & Stone, for Appellants.

The findings of fact of the industrial accident board, when supported by competent evidence, are conclusive on appeal to the district and supreme court; the jurisdiction of these courts being limited to a review of questions of law. (Kaylor v. Callahan Zinc-Lead Co., 43 Idaho 477, 253 P. 132; C. S., sec. 6270; Ybaibarriaga v. Farmer et al., 39 Idaho 361, 228 P. 229; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Taylor v Blackwell Lumber Co., 37 Idaho 707, 218 P. 356.)

Allen P. Asher, for Respondent.

If appellant relies on the defense that deceased died of diabetes and not as a result of his injuries, it was incumbent upon the appellant both to have pleaded said defense and proved the same by the preponderance of evidence. (Rules of Procedure, Industrial Accident Board, Rule 4, Par 2; C. S., sec. 6698; Utah & N. R. Co. v. Crawford, 1 Idaho 770; Atchinson v. Colgate & Co., 102 N.J.L. 425, 131 A. 922).

Whether there is any competent or substantial evidence in support of the board's findings and award is a question of law. (Bingham Mines Co. v. Allsop, 59 Utah 306, 203 P. 644; Milford Copper Co. v. Industrial Commission, 61 Utah 67, 210 P. 993; Cook v. Massey, 38 Idaho 264, 35 A. L. R. 200, 220 P. 1088; Tulsa St. Ry. v. Shoemaker, 106 Okla. 99, 233 P. 182; Johnston v. White Co., 37 Idaho 617, 217 P. 979.)

WM. E. LEE, C. J. Taylor, J., and Hartson, District Judge, concur. Givens, J., dissents.

OPINION

WM. E. LEE, C. J.

--This appeal is from a judgment of the district court, reversing a decision of the industrial accident board.

John K. Ashley, seventy-two years of age, for fifty years a surveyor, while engaged in surveying a road for Bonner County, sustained an injury to the great toe of his left foot, after which he worked for about thirty minutes. Some two weeks later he sought the services of Dr. Page, who found that "the wound was infected and apparently a lacerated wound." The injury failed to respond to the prescribed treatment and it was discovered that Mr. Ashley had diabetes. Dr. Page recommended hospital care and treatment. Mr. Ashley was then taken to the home of his daughter and thereafter treated by Drs. Bardwell and Phillips, at Newport, Washington. They also found the diabetic condition and that the wound was gangrenous. They removed the toe and the metatarsal bone of the injured foot. Death occurred about three weeks after the operations.

The board found that death resulted "from diabetes and not as a result of any injury received by accident," and denied compensation. On appeal, the district court held that there was no competent evidence to sustain the finding that death was caused by diabetes and that the board erred in making such finding. The district court thereupon made a finding that ". . . . John K. Ashley died . . . . as a result of the accident. . . ."

It is contended that the evidence is insufficient to sustain the finding of the district court that death resulted from the injury, and that the court was not justified in setting aside the finding of the board.

That deceased sustained an injury to his toe and was also afflicted with diabetes there is no doubt. That the injured toe became gangrenous is also fully proven. Since respondent sought to show that the gangrenous condition of the foot resulted from the injury and appellant sought to prove that it resulted from the disease, it is safe to say that counsel assumed that the gangrenous condition of the foot was the immediate cause of the death. However, the record does not disclose what caused the death. The gangrenous condition, according to the medical evidence could have resulted from either the disease or the injury, and the evidence does not disclose the actual cause thereof. Dr. Phillips, who performed the operations and in whose hospital the death occurred, testified that the gangrene "could come from either" the wound or the diabetes; that "injury or a blow in which the blood vessels are destroyed, will cause gangrene . . ....