In re Death of Soran

• Decision Date: 15 March 1937
• Docket Number: 6274
• Parties: In the Matter of the Death of JOHN J. SORAN. RUTH SORAN, as the Dependent Surviving Widow, and ROBERT SORAN, STANLEY SORAN, FRANK SORAN, LEO SORAN, WILLIAM SORAN, THERESA SORAN and DANIEL SORAN, as the Dependent Surviving Minor Children of JOHN J. SORAN, Deceased, Appellants, v. G. E. MCKELVEY, as Commissioner of Public Works of the State of Idaho, and Bureau of Highways of the State of Idaho, Employer, and STATE INSURANCE FUND, Surety, Respondents
• Court: Idaho Supreme Court

67 P.2d 906

57 Idaho 483

In the Matter of the Death of JOHN J. SORAN. RUTH SORAN, as the Dependent Surviving Widow, and ROBERT SORAN, STANLEY SORAN, FRANK SORAN, LEO SORAN, WILLIAM SORAN, THERESA SORAN and DANIEL SORAN, as the Dependent Surviving Minor Children of JOHN J. SORAN, Deceased, Appellants, v. G. E. MCKELVEY, as Commissioner of Public Works of the State of Idaho, and Bureau of Highways of the State of Idaho, Employer, and STATE INSURANCE FUND, Surety, Respondents

No. 6274

Supreme Court of Idaho

March 15, 1937

WORKMEN'S COMPENSATION ACT-APPLICATION FOR COMPENSATION-ACCIDENT-EVIDENCE-AGGRAVATION OF PRE-EXISTING FAULTY CONDITION OF HEART-EXPERT TESTIMONY.

1. Under paragraph of application for compensation alleging that deceased employee was injured by accident arising out of employment, and that death resulted from such injury, answer admitting all allegations of such paragraph except that death resulted from injury held to preclude contention by employer and surety that claimants failed to produce sufficient evidence with regard to accident.

2. Pre-existing faulty condition of employee's heart would not defeat compensation for his death through aggravation of condition of heart by back injury sustained from strain of lifting.

3. Evidence, consisting of medical testimony, showing that deceased employee had defective heart when back injury from strain of lifting was sustained, and that back injury aggravated defective condition of heart, which subsequently caused death, held not to sustain denial of compensation on ground that no causal connection between accident and death was shown, especially where Industrial Accident Board found that employee had abnormal heart when accident occurred.

4. In workmen's compensation case, where there is ground for comparing and balancing respective values of known facts, and where more probable conclusion is that for which claimant contends, inference in his favor is justified.

5. Positive expert testimony will prevail over negative expert testimony.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles E. Winstead, Judge.

Proceeding under Workmen's Compensation Law. Judgment affirming order of Industrial Accident Board denying compensation. Reversed and remanded.

Reversed and remanded. Costs to appellants.

Hawley & Worthwine and E. B. Smith for Appellants.

A defendant, who himself introduces secondary evidence which if offered by the adverse party, could have been excluded, is bound by his introduction and adoption of that secondary evidence. (Groome v. Fisher, 48 Idaho 771, 284 P 1030; Hope v. Stoner, 108 Ore. 592, 218 P. 555; Horwitz v. Jefferson County Traction Co., (Tex Civ. App.) 188 S.W. 26.)

The opinion of a physician who attended a workman from the time of injury and thereby obtained his information from first-hand personal knowledge is in the best position to form an opinion as to the cause of death, and such physician's opinion is entitled to more weight than that of one who did not so attend such workman. Testimony of facts ascertained by such physician, necessary in diagnosis and treatment of the patient, is sufficient evidence of the type and fact of the injury. (Arender v. Grant Timber & Mfg. Co., 9 La App. 132, 119 So. 498; Delich v. Lafferty Shingle Mill Co., 49 Idaho 552, 290 P. 204; Hawkins v. Bonner County, 46 Idaho 739 at 742, 271 P. 327; Jensen v. Wheeler & England, 51 Idaho 91, 1 P.2d 624 (board's finding approved); 22 C. J. 738, sec. 828.)

J. R. Smead for Respondents.

The burden of proof was on appellant, claimant before the Industrial Accident Board. (Walker v. Hyde, 43 Idaho 625, 253 P. 1104.)

The burden was on appellant to prove that the death involved resulted from an injury received in the course of the deceased's employment. (Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992.)

Where the condition which caused death may have resulted from a previous injury or disease and not from the injury in question, this does not sustain the burden of proof required in one claiming compensation. (Hawkins v. Bonner County, supra.)

Findings of the Industrial Accident Board cannot be based upon incompetent testimony, such as hearsay. (Hillhouse v. Bonner County, 46 Idaho 730, 271 P. 459; Jensen v. Wheeler & England, 51 Idaho 91, 1 P.2d 624.)

GIVENS, J. Holden, J., Lee and Sutton, D. JJ., concur. Morgan, C. J., because his son-in-law, E. B. Smith, was of counsel, did not participate.

OPINION

GIVENS, J.

--John J. Soran about 37, married, with six children, formerly a farmer and general day laborer, was working October 27, 1931, for the State Highway Department with two other men lifting and moving 30-35 foot wooden beams, weighing about 700 pounds, and an extra strain came on him and strained or wrenched his back, causing immediate severe pain in the sacroiliac region which compelled him to leave his work and he was taken to a hospital and in a few days was found to be suffering from edema (swelling) of the ankles, enlarged abdomen, irregular and "auricular fibrillation" of the heart, and he remained in the hospital until December 9, 1931. He returned to work, January 25, 1932, but could not after October 27, 1931, do more than the lightest work, none calling for any exertion. He was just able to be around and was kept on the job out of sympathy and regard for his necessities. The condition of the heart, ankles, and abdomen continued much the same until October 18, 1932, when they were much worse: (Dr. Wahle describing the "auricular fibrillation.")

"A. It is a condition of the heart in which the auricles are going along at an extremely rapid rate, and the ventricles also, and there is no relation between the pulsation at the heart as heard by the stethoscope and the pulse at the wrist. The pulse at the wrist may be 60 to 70 and that at the apex of the heart, as listened to by stethoscope, extremely irregular and much faster than that felt at the wrist, and all of the beats of the heart don't come through, and it is a condition in which the heart is thrown out of time, the timer of the heart, the pacemaker, does no longer control the rhythmical action of the heart. It goes wild, so to speak, and the auricles of the heart go on at a very great rate of pulsation and the ventricles also, but there is no relation between the pulsation at the apex of the heart and that at the wrist. It is a condition of the heart that has gone wild, so to speak, and out of control, and in that connection at the time when I saw him the second time I found the heart very much enlarged and dilated and, that is, stretched and enlarged, very markedly, the second time I saw him."

and he was given this treatment:

"A. After doing everything possible, after tapping the abdomen and removing the fluid from the abdomen two or three times, he picked up for awhile. The liver was very much enlarged and the heart condition continued to become progressively worse, and the ultimate result was that the patient died on the 30th of December, 1932, as a result of a heart that would not come back, that would not compensate itself under every form of treatment we knew of. The kidneys became progressively worse. The abdomen persisted in filling up with fluid. We tried to improve the circulation in every way, the circulation of the heart and general circulation. We tried to improve the elimination from the kidneys in every way possible, but we could not accomplish the results we tried to, set out to do. The patient became progressively worse and died on the 30th day of December, 1932.

"Q. The second time that he came under your treatment in October, 1932, were the symptoms and ailments then suffered by Mr. Soran any different than those suffered when he came under your treatment in October, 1931?

"A. With only one exception, that is to say, this time he did not have the sacroiliac sprain, but the other symptoms, the heart and shortness of breath and the swollen abdomen, that is, the other symptoms and conditions, were more pronounced. Only with the exception of the back sprain the condition was practically the same, only in a much more aggravated form. I would have to say that. The heart was worse. The ascites, that is, fluid in the abdomen, was worse. The swelling of the ankles and lower limbs was worse, and so was the shortness of breath."

In her application for a hearing before the board, claimant alleged in paragraph II that:

". . . . on or about October 27, 1931, John J. Soran was injured by accident arising out of and in the course of his employment by the above named employer, during the regular hours and course thereof; that his death resulted from said injury on December 30, 1932."

which allegation, that is, that Soran was injured by an accident, was admitted by paragraph I of respondents' answer:

"Admit the allegations of Paragraphs I, II, III, IV, and V, of said application, except that the defendants deny that the death of John J. Soran resulted from the injury alleged in paragraph II of said application."

Consequently there is no basis for respondent's criticism that claimant did not produce more evidence with regard to the accident. The accident was admitted.

The board found that "the said John J. Soran sustained a personal injury by accident arising out of and in the course of his said employment" on the 27th day of October 1931, and that on October 30th, an examination of a physician "revealed that the said John J. Soran had a sacroiliac sprain, with pains radiating around to the groin on both sides, edema of the wrists and ankles, an enlarged abdomen and an irregular heart"; and again on November 9, 1931, he was found "to be suffering from a sacroiliac sprain,...