Heuchert v. State Ind. Acc. Com.

• Decision Date: 20 January 1942
• Parties: HEUCHERT <I>v.</I> STATE INDUSTRIAL ACCIDENT COMMISSION
• Court: Oregon Supreme Court

168 Or. 74

121 P.2d 453

HEUCHERT

v. STATE INDUSTRIAL ACCIDENT COMMISSION

Supreme Court of Oregon.

Submitted on briefs January 20, 1942.

Affirmed January 27, 1942.

Workmen's compensation

1. Unpaid compensation installments, accruing before death of employee, thereafter may be recovered by employee's personal representative.

Workmen's compensation

2. In compensation proceeding, administratrix of estate of original plaintiff would be substituted as plaintiff in view of rule that unpaid compensation installments accruing before death of employee thereafter may be recovered by employee's personal representative.

Workmen's compensation

3. In compensation proceeding, qualified medical expert's opinion on issue whether there was aggravation of disability resulting from accidental injury is competent and must be considered in dealing with questions presented by a motion for involuntary nonsuit.

Workmen's compensation

4. In compensation proceeding, wherein medical expert testified that it was his opinion that accident was probably a contributing cause of employee's subsequent severe illness and other medical experts testified to a contrary opinion, sufficiency of evidence was question for jury.

Workmen's compensation

5. In case of employee's death from a cause dissociated from the injury sustained in the accident upon which such employee's claim is based, his personal representative may recover only the installments accruing while the employee was living.

                  Survival of right to compensation under workmen's compensation
                act upon death of person entitled to award, notes, 15
                A.L.R. 821; 24 A.L.R. 441; 29 A.L.R. 1426; 51 A.L.R. 1446
                87 A.L.R. 864; 95 A.L.R. 254
                  71 C.J., Workmen's Compensation Acts, § 321
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Proceeding under the Workmen's Compensation Act by Emilie Heuchert, administratrix of the estate of Joseph Heuchert, deceased, substituted for Joseph Heuchert, against the State Industrial Accident Commission of the State of Oregon. From the judgment, the defendant appeals.

AFFIRMED.

I.H. Van Winkle, Attorney General, C.S. Emmons, Oliver Crowther, and C.L. Marsters, Assistant Attorneys General, for appellant.

Gunther F. Krause, Victor R. Griggs, and George E. Birnie, all of Portland, for respondent.

Proceeding under Workmen's Compensation Act for increased compensation on account of aggravation of disability caused by a fall which occurred while plaintiff's decedent was attempting to place a pan of shafts upon a small truck. From a judgment and order referring said decedent's claim to defendant, State Industrial Accident Commission, to cancel and set aside a former order, and to enter a new order awarding plaintiff's decedent compensation for temporary total disability, defendant appealed.

On September 19, 1941, the original plaintiff herein, Joseph Heuchert, died; and on January 13, 1942, Emilie Heuchert, administratrix of his estate, was substituted as plaintiff.

KELLY, C.J.

In considering both the motion of defendant for an order of abatement and a mandate directing the circuit court to quash and dismiss the original action, and the propriety of permitting the administratrix of the estate of the original plaintiff now deceased, to be substituted as plaintiff herein, we are called upon to determine whether the record reflects a chose in action which survives the death of the original plaintiff.

It was argued that, inasmuch as the statute renders such a claim as the one under consideration nonassignable it is not subject to revival upon the death of claimant. There is authority to the effect that when a certain class of claims is decreed by statute to be nonassignable in order to protect the beneficiaries and assure the accomplishment of the purposes of such statute, as to those claims, the test of assignability cannot be invoked in determining whether such claims survive the death of the original claimant. Employers' Mutual Liability Ins. Co. v. Empire Nat. Bank & Trust Co., 192 Minn. 398, 256 N.W. 663, 95 A.L.R. 250; Monson v. Battelle, 102 Kan. 208, 210, 170 P. 801, 802.

Moreover, "it is well settled in most jurisdictions that an action is not abated by the death of a party after the cause of action has been merged in a final judgment and while the judgment stands, even though the judgment is based on a cause of action which would not survive the death of a party before judgment. In such case the doctrine of abatement does not apply." 1 C.J.S. Subject: Abatement and Revival, p. 174, § 127, citing among others, the following authorities:

Sherwin v. Southern Pac. Co., 168 Cal. 722, 145 P. 92; Ahearn v. Goble, 90 Colo. 173, 7 P.2d 409; Russell v. James Butler Grocery Co., 268 N.Y.S. 668, 240 App. Div. 31, 267 N.Y.S. 136, 239 App. Div. 169, reversed on other grounds, 265 N.Y. 482, 193 N.E. 281; Trampusch v. Kastner, 279 N.Y.S. 665, 244 App. Div. 431; Roche v. McDonald, 158 Wash. 446, 291 P. 476; Carr v. Rischer, 119 N.Y. 117, 23 N.E. 296; Blake v. Griswold, 104 N.Y. 613, 11 N.E. 137; Hart v. Washburn, 16 N.Y.S. 923, 62 Hun 543; Siberell v. St. Louis San Francisco Ry. Co., 320 Mo. 916, 9 S.W.2d 912; Castelluccio et al. v. Cloverland Dairy Products Co. Inc., 165 La. 606, 115 So. 796.

The question here involved has been decided in a number of sister jurisdictions wherein it has been held that recovery may be had by the personal representative upon installments accruing during the life of the original claimant.

Annotations, treating this question and reviewing the authorities thereon, are to be found in 15 A.L.R. 821, 24 A.L.R. 441, 29 A.L.R. 1426, 51 A.L.R. 1446, 87 A.L.R. 864 and 95 A.L.R. 254.

The following cases uphold the rule that as to accrued installments, the claim survives the death of the employee. Parker v. Industrial Commission, 87 Utah 468, 50 P.2d 278; Smith v. Kaw Boiler Works Co., 104 Kan. 591, 180 P. 259; State ex rel. Munding v. Industrial Com. of Ohio, 92 Ohio St. 434, 111 N.E. 299 L.R.A. 1016D 944, Ann. Cas. 1917D 1162; Industrial Com. of Ohio v. Dell, 104 Ohio St. 389, 135 N.E. 669, 34 A.L.R. 422; Whitmore v. Industrial Com. of Ohio, 105 Ohio St. 295, 136 N.E. 910; State Accident Fund v. Goldsborough, Admr., 140 Md. 622, 118 A. 159, 24 A.L.R. 434; Bry-Block Mercantile Co. v. Carson, 154 Tenn. 273, 288 S.W. 726; Roney v. Griffith Piano Co., 131 A. 686, 4 N.J. Misc. 31; Case of Bartoni, 225 Mass. 349, 114 N.E. 663, L.R.A. 1917E 765; Rounds v. State Ind. Com., 157 Okla. 145, 11 P.2d 479; Renfrow v. Caddo Parish Police Jury, (La App.) 155 So. 291; Western Indemnity Co. v. State Ind. Com., 96 Okla. 100, 219 P. 147, 29 A.L.R. 1419; Felmet v. Barbre et al., 188 Okla. 116, 106 P.2d 1107; Houg v. Ford Motor Co., 288 Mich. 478, 285 N.W. 27; Texas Employers' Ins. Ass'n. v. Phillips, 130 Tex. 182, 107 S.W. 991.

In referring to the case of Ray v. Industrial Ins. Com., 99 Wash. 176, L.R.A. 1918F 561, 168 P. 1121, cited by defendant and to Zahler v. Department of Labor and Industries, 125 Wash. 410, 217 P. 55, and La Chapelle v. Union Pac. Coal Co., 29 Wyo. 449, 214 P. 587, the supreme court of Utah, speaking through Mr. Justice Wolfe, say:

"We have been unable to find any cases where it was held that the employer was not liable for the accrued payments except perhaps the two Washington cases above cited and the case of La Chapelle v. Union Pacific Coal Co.," supra. Parker v. Industrial Commission, supra.

1, 2. We think that the better reasoning and the weight of authority support the rule as above stated, namely: that unpaid installments accruing before the death of the employee thereafter may be recovered by the employee's personal representative. For that reason we have entered the order of substitution as requested by the administratrix of the estate of the original plaintiff.

ON THE MERITS

On or about October 2, 1939, while in the employ of Iron Fireman Manufacturing Company, in Multnomah county, plaintiff's decedent sustained a personal injury arising out of and in the course of said employment.

Said decedent's version of the accident, as it appears in his complaint, is that —

"While stooping over in a twisted side position and lifting a pan of shafts, plaintiff's foot slipped causing him to fall upon the floor striking his buttocks with great force and causing the pan of shafts to strike plaintiff's groin and abdomen with great force and causing a severe sprain of the lumbar region of plaintiff's back."

Said decedent's claim for compensation for the injuries sustained thereby was allowed by the defendant and he was paid compensation for temporary total disability from the date of said accident until the 28th day of November, 1939.

On December 4, 1939, a final order was made and entered by defendant whereby said decedent's claim for temporary total disability was terminated as of said 28th day of November, 1939, without any award of compensation for permanent disability.

The issue joined herein arises from said decedent's claim that subsequent to December 4, 1939, there was an aggravation of said disability resulting from said accidental injury.

It plainly appears that prior to October 2, 1939, plaintiff's decedent was afflicted with cancer of the prostate. He claims that the accident just mentioned aggravated that malady and accelerated its spread to the bony structure of his body.

The defendant denies that claim, and the question here presented is whether there was any substantial testimony to support it. This question was presented to the trial court by a motion for an order of involuntary nonsuit.

Defendant calls attention to the rule that in those cases where merely a question of medical science is involved of such a nature that only medical experts are qualified to express an opinion on it, expert medical testimony is a necessary prerequisite to a recovery.

Dr. Alan Welch Smith testified in...