In re Frihauf

• Decision Date: 30 March 1943
• Docket Number: 2256
• Citation: 58 Wyo. 479,135 P.2d 427
• Parties: IN RE FRIHAUF; v. FRIHAUF COLORADO FUEL & IRON CORP.
• Court: Wyoming Supreme Court

135 P.2d 427

58 Wyo. 479

IN RE FRIHAUF;

COLORADO FUEL & IRON CORP. v. FRIHAUF

No. 2256

Supreme Court of Wyoming

March 30, 1943

ERROR to District Court, Platte County; SAM M. THOMPSON, Judge.

Proceeding under the Workmen's Compensation Law by Fred Frihauf claimant, opposed by the Colorado Fuel & Iron Corp. employer. To review a judgement awarding compensation, the employer brings error.

Affirmed.

For the plaintiff in error, there was a brief by William E. Mullen of Cheyenne, and C. H. Groves, of Denver, Colo., and oral arguments by Messrs. Mullen and Groves.

This is a hernia claim under the Workmen's Compensation Act. The trial court rendered a judgment of award in favor of the defendant in error, to which the employer excepted and therefore filed its motion for a new trial. The errors complained of are grounded upon a contention that the evidence is insufficient to sustain the judgment under the specific requirements of proof of Section 124-122, W.R.S. 1931 as amended by Chapter 4, of the Laws of 1935, prescribing the proof required to establish a claim for hernia under the Workmen's Compensation Law. This statute was not a part of the original compensation act. It is fair to presume that claims for compensation became so numerous that it was deemed necessary to prescribe certain rules of evidence in order to guard against fraudulent claims by requiring clear and convincing proof of traumatic hernia resulting from accidental injury in the course of the employment and that the burden of proof to be sustained by the claimant should be something more than a mere preponderance of the evidence. Thus, the statute requires a hernia claimant to clearly prove 4 specific facts in order to establish his claim. Peterson v. Bauer's Estate, (Nebr.) 111 N.W. 361. The statute calls for a degree of proof similar to that required to establish fraud or prove mistake in a written instrument. C. R. I. & P. R. Co. v. Comm., (Nebr.) 124 N.W. 477; 2 Jones on Evidence, Sec. 195; Lalone v. U.S. 164 U.S. 255; U. S. v. Telp. Co., 167 U.S. 224. This court considered the question in Wilson v. Sugar Corp., 47 Wyo. 141. But that case was decided before the statute was amended by eliminating proof of discoloration. It was clearly proven by medical witnesses called by the employer that claimant had congenital hernia existing since birth. It was also proven by claimant that his protrusion was of a recent origin. It is the contention of the employer that claimant's evidence did not prove a hernia preceded by an accidental strain suffered in the course of his employment, nor did his evidence establish an accidental strain. A congenital hernia existing since birth of an adult claimant is not, of course, of recent origin, irrespective of the time when protrusion may appear, since protrusion in such case is merely evidence of an internal rupture which had existed within the lifetime of the claimant without protrusion. Evidence of a recent protrusion is not sufficient alone to prove hernia of recent origin. The only hernia compensable under the law is a traumatic hernia caused by the sudden and unexpected application of force of an unusual and destructive character. We find the point discussed in Hillhouse v. County, (Ida.) 271 P. 459, and a dissenting opinion by Taylor, Justice. The majority opinion, however, apparently ignored a special statute similar to our own. See also McPhee & McGinnity v. Comm., (Colo.) 185 P. 268, where the facts were quite similar to those in the case at bar. See also Ind. Comm. v. Hoover, (Colo.) 259 P. 509. The Utah court holds that a layman is incompetent to prove the existence or non-existence of congenital hernia and that the question must be determined as a rule by those schooled and skilled in the practice of the medical profession. Staker v. Comm., (Utah) 209 P. 880. In the present case the testimony of a physician who performed a surgical operation on claimant was apparently ignored and the testimony of claimant, who is a layman, was accepted as sufficient to establish his claim. The compensation law requires medical testimony, Sec. 124-129, W.R.S. 1931. There must also be evidence of an accidental strain. There is respectable authority to the effect that an injury sustained, although unforseen, is not accidental if shown to have been the result of means voluntarily employed. Schmid v. Ass's., (Ind.) 85 N.E. 1032; Fidelity Co. v. Stacey, 143 F. 271; Feder v. Ass'n., (Ia.) 78 N.W. 252; Southard v. Assur. Co., 22 F. Cas. No. 13,182; Smouse v. Ass'n., 92 N.W. 53; Shanberg v. Co., 143 F. 651; Ludwig v. Ins. Co., 130 N.W. 5. The evidence shows that claimant was doing the same work in the same way, using the same appliances that he had been using for 6 months previous to February 4, 1942. There was no evidence of an accidental strain. An award will be set aside if not sustained by legal evidence. It is a question of law for the court. Employers Ins. Co. v. Comm., (Colo.) 219 P. 1078. It is respectfully submitted that the order of compensation award is not sustained by the evidence and should be reversed.

For the defendant in error, there was a brief and an oral argument by W. B. Jones, of Wheatland.

It will be observed from the findings of the trial court that all 4 of the statutory requirements of Section 124-122 W.R.S. 1931 as amended by Chapter 4 of the Laws of 1935 have been met. The Supreme Court must assume the truth of the evidence in favor of the successful party and ignore the evidence of the unsuccessful party in conflict therewith and give the evidence of the successful party every favorable inference which may be drawn from such evidence. Griffin v. Rosenblum, 46 Wyo. 40; Willis v. Willis, 48 Wyo. 403; Branson v. Roelofsz, 52 Wyo. 101. The Wyoming case of Standard Oil Co. v. Sullivan is to the same effect, (Wyo.) 237 P. 253. Claimant had a physical examination upon entering the employ of the company. In addition to that, he had 20 to 25 examinations for hernia before entering prize fighting contests and no hernia was detected in any of said examinations. It is the contention of defendant in error that the authorities cited by plaintiff in error on the question of accidental strain are not applicable in the present case. It would be a mighty poor Supreme Court that could not, under such facts as are here presented, invoke some rule of law which would prevent a gross miscarriage of justice. The Supreme Court is committed to the doctrine that the Workmen's Compensation Law should receive a liberal consideration to accomplish the benevolent purposes for which it was enacted. Sakamoto v. Coal Co., 36 Wyo. 325; McConnel v. Murphy Bros., 45 Wyo. 289; Koprowski v. Coal Co., 48 Wyo. 334; In re Pero, 49 Wyo. 131. It is conceivable that a person might be handling uniform weights over a period of years in the usual and customary manner without suffering any injury therefrom. But we claim that there are hazards encountered in the lifting of unusual weights that might sometimes cause accidental injury. The case of Wilson v. Sugar Corp., 47 Wyo. 141, was decided prior to the amendment of the statute eliminating one of the requirements of the original statute. The case of Johnson v. Ideal Bakery, 51 Wyo. 111, turned upon the failure of proof as to the date claimant received his injury. It is respectfully submitted that upon the record the decision of the District Court should be affirmed.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is a workmen's compensation case. Fred Frihauf, hereinafter called the workman, an employee of the Colorado Fuel & Iron Company, was awarded the sum of $ 134.27 for temporary total disability by reason of a left inguinal hernia developed in the course of his employment. The employer, hereinafter, for the sake of brevity, called appellant, has brought this case to this court by petition in error.

The workman, 32 years of age, was engaged in the duties of general surface laborer at the appellant's iron ore mine. His testimony is to the following effect: He commenced to work for appellant about five years previous to the injury here in question, was then examined by the company physician for hernia, who "stuck his finger up the pelvis and made him cough," and certified him for employment. He was a professional boxer, and had been examined for hernia subsequently twenty or twenty-five times; the last time about a year previous to the injury, by the examining physician for the State Athletic Board. He never had a protrusion before the strain hereinafter mentioned. On February 4, 1942, the workman was engaged in dumping cars. "Q. Just how do you perform that work? A. Well, you dump the doors and dump the ore in the hopper and then it goes through the plant and they pick out the rocks, and at the time I had a 3-inch pipe and was putting it in the door to dump it, and you have to raise it up; sometimes one man can't dump them and you have to ask for help. That is when I first felt it. Q. Does that require a lot of physical effort? A. Yes. You loosen the dogs. It has dogs on it, and you do that by pushing upwards on the pipe. Well, we was dumping a short-red car. It is a railroad car, and the door wouldn't wind up, and we had to raise them up. I suppose the doors weigh around 500 pounds. You stick a bar in, and if they don't wind up you have to raise them way up about chin level to get them hooked. And that is where I felt the worst pain in my side." That was the end of the work that evening. He leaned against a fence for a while, and the pain was relieved. In about an hour and a half he went to the wash room, examined himself, and found a protrusion in his left side, about an inch and a quarter in diameter, the thickness of a thumb and reddish in appearance. ...