In re Scrogham

• Decision Date: 10 November 1937
• Docket Number: 2048
• Citation: In re Scrogham, 52 Wyo. 232, 73 P.2d 300 (Wyo. 1937)
• Parties: IN RE SCROGHAM; ASSOCIATED SEED GROWERS, INC. v. SCROGHAM
• Court: Wyoming Supreme Court

73 P.2d 300

52 Wyo. 232

IN RE SCROGHAM;

ASSOCIATED SEED GROWERS, INC. v. SCROGHAM

No. 2048

Supreme Court of Wyoming

November 10, 1937

APPEAL from the District Court of Park County; P. W. METZ, Judge.

Proceeding under the Workmen's Compensation Law by Clarence Scrogham, claimant, opposed to the Associated Seed Growers Inc., employer. From a judgment granting an award, the employer appeals.

Affirmed in part, reversed in part, with instructions.

For the appellant there was a brief and oral argument by Ernest J Goppert of Cody, Wyoming.

The evidence established that claimant was a sick man at the time of the accident. The trial court erred in finding that claimant had never been sick in his life, notwithstanding the court's further finding that claimant in the early years of his life had contracted tuberculosis. The evidence was insufficient to sustain the court's finding that claimant suffered accidental injury on December 27, 1935, as a result of his employment. The weight of authority holds that injury received by the ordinary exertion required to perform the employee's duties in the ordinary and normal manner, in the absence of any mishap, is not compensable as an accident. 71 C. J. 617; L. R. A. 1916A 32, 33 and 35; Foster v Borough, (Pa.) 168 A. 693; Frank v. Chicago, (S. D.) 207 N.W. 89; Industrial Commission v. Franken, (Ohio) 185 N.E. 199; Jakub v. Commission, (Ill.) 123 N.E. 263; Feder v. Iowa Association, 43 L. R. A. 693; Coal Co. v. Commission, (Utah) 240 P. 1103; Alpert v. Powers, 223 N.Y. 97; Indemnity Company v. Commission, (Cal.) 35 P.2d 366; Peer v. Industrial Commission, 29 P.2d 636; Swedberg v. Standard Oil Co., (Mich.) 259 N.W. 884. This court has held that the injury for which compensation may be allowed is one arising through accident. In re Pero, (Wyo.) 52 P.2d 690. The injury must result out of the employment. Sec. 124-106-7. The burden of proof is always on the claimant to prove that the injury was caused by an unusual strain or accident and not by disease. Westman's Case, (Me.) 106 A. 532; Mining Company v. Salisbury, (Utah) 210 P. 929; Chaudier v. Sterns & Culver Lumber Co., (Mich.) 173 N.W. 198; Davis v. Fowler Packing Co., (Kan.) 168 P. 1111; Pfeiffer v. Workmen's Compensation Bureau, (N. D.) 221 N.W. 894; Bryant, et al. v. Fissell, 84 N. J. L. 72; Linnane v. Brewing Co., (Conn.) 99 A. 507; Thomas v. State Workmen's Insurance Fund, 124 A. 499. Claimant's evidence was insufficient to prove that the hemorrhages in either eye were caused by any lifting. Claimant's blindness was caused by disease, not from injury occurred in his employment, and the court erred in awarding compensation therefor. The primary cause of the hemorrhages was disease. Coal Mining Co. v. Commission, (Ill.) 132 N.E. 752; Commission v. Brown, (Ohio) 110 N.E. 744; Casualty Co. v. Flores, 1 S.W.2d 260; O'Hara v. Hayes, 41 Ir. Law Times 71; Swinbank v. Bell Bros., 5 B. W. C. C. (Eng.) 48; Hawkins v. Coa. Co., 1 K. B. (Eng.) 988; Spence v. Baird, 49 Scot. L. R. 278; Mine v. Ennor, 13 C. L. R. (Austr.) 276; Coe v. Coal Co., 46 Scot. L. R. 328. Claimant's right eye was in no manner impaired by the claimed accidental injury to his left eye, and the court erred in awarding any compensation for injury to his right eye.

For the respondent, there was a brief by Milward L. Simpson and Meyer Rankin of Cody, and an oral argument by Mr. Simpson.

The Workmen's Compensation law provides compensation for injuries sustained in extra-hazardous employment. The word "Accident" does not appear in the statute, save in Chapter 124, Section 112, referring to reports of accident. See Section 106, Chapter 124, also Section 7. A strain resulting from over-exertion in attempting to perform some unusually heavy duty is now by the majority of cases considered to be an accident. L. R. A. 1916A, pp. 32 and 33. An examination of the cases cited by appellant falls far short of sustaining its contentions. In the type of injury similar to the facts in the case at bar, they are considered accidents under the law and are compensable. In re Fisher, 108 N.E. 361; St. Clair v. Music House, (Mass.) 178 N.E. 705; In re Madden, 111 N.E. 379; Patrick v. Company, 13 A. L. R. 427; Guay v. Brown Company, (N. H.) 142 A. 697; Valeri v. Village of Hibbing, (Minn.) 211 N.W. 8; Samoskie v. Coal Co., 124 A. 471; Company v. Industrial Commission, 125 N.E. 254; Gilliland v. Portland Cement Co., (Kans.) 180 P. 793; Cole v. Department of Labor and Industries, 243 P. 7; Insurance Co. v. McCrady, 60 A. L. R. 1304; Fidelity & Casualty Co. v. Commission, (Calif.) 171 P. 429; Jordan v. Company, 130 N.E. 634; Koprowski v. Megeath Coal Co., 48 Wyo. 334; McConnell v. Murphy Bros., (Wyo.) 18 P.2d 629; Beever v. Morrison Company, (Idaho) 41 P.2d 605. It seems clear that under the authorities, claimant's injury was caused by the arduous work the boy was performing, which ruptured the blood vessels of his eyes, which caused blindness, and that such injury is compensable.

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

OPINION

RINER, Justice.

This cause, brought here by direct appeal, arises under the Workmen's Compensation Law of this state. The district court of Park County made an award in favor of the respondent, Clarence Scrogham, hereinafter usually referred to as the "employee" or "claimant," and the appellant, Associated Seed Growers, Inc., a corporation, subsequently designated herein as the "employer" or the "company," claiming error in the court's action in that respect, asks that the record be reviewed.

The material facts are very little in dispute and would appear to be these: Scrogham, a married man, with three children, aged one, three and five years respectively, in his family, living at Powell, Wyoming, went to work for the Company in its seed plant there the latter part of June, 1935. He testified that he had never experienced any illness since he was nine years old. In 1930 he took out a life insurance policy, carried it for several years and then dropped it. He was employed by the Company from about the middle of August, 1935, until January 8, 1936, to draw off seed beans from a hopper into sacks, then to lift and pile these sacks on a five bag truck, the top sack being placed at a height of from three and one-half to four feet. When there were scales under the hopper, which sometimes was the case, the sacks were filled to weigh 112 to 120 pounds; if there were no scales, the sacks would weigh on an average from 125 to 130 pounds; also some of the larger sacks would then be filled to weigh 150 pounds. He handled from 20 to 30 sacks of beans an hour. The employee worked eight hours a day on two shifts, working some weeks on one shift, some on another. One of these shifts was from 6 A. M. to 2 P. M., and the other from 2 P. M. to 10 P. M.

On December 27, 1935, when Scrogham was working on the afternoon shift, which as already indicated ran until 10 o'clock at night, and just after he had eaten his evening meal, about six o'clock, what took place is thus described by the claimant's testimony:

"I was draining off the hopper. I bent over to pick up a sack and put it five high. That was the fifth sack up. When I looked at the light bulb there was red streaks of stuff through my left eye. I told some of the boys working there I could see different objects, and they all looked red to me when I looked at the light. When I didn't look at the light it looked like a bunch of moss wove around through my eye."

One of his fellow workmen, as a witness, testified about hearing Scrogham make the remark about seeing objects "red," referred to in the claimant's testimony. On cross-examination and redirect examination claimant further said that he noticed something in front of his eye, a "cloudiness," and seeing "red" for the first time on the date last mentioned after he stooped to lift one of the sacks and "went to straighten up." Previous to this time the only trouble he had had with his eyes was their "watering" and a "flickering" or "twitching" sensation. Having occasion, the early part of December, 1935, to take one of his children to a licensed optometrist, on account of an inflamed eye, he had the practitioner examine claimant's own eyes, and was then told that there was nothing wrong with them.

After the occurrence, on December 27, 1935, Scrogham told the manager of the Seed Plant about the condition of his left eye, as he had mentioned it to his fellow workmen, and was directed by the manager to go to Billings, Montana, to consult an eye specialist in that city. The latter made an examination of both eyes of the employee on December 30, 1935, finding therefrom that Scrogham had rather an extensive recent hemorrhage on the interior of his left eye and that his vision was in that eye reduced to see from only three to five feet. The right eye was, however, at the time found to be nearly normal, the specialist testifying on the trial of this case that then in that eye "with very weak lenses he had normal vision." After this examination the employee returned to Powell and continued his work as usual in the Company's seed plant for about a week longer. On January 9, 1936, Scrogham returned to the specialist complaining of something in his right eye. A second examination was then made and it disclosed that he had suffered a hemorrhage in that eye also. Shortly thereafter, at the direction of the employer, following the eye specialist's suggestion, the employee returned to Billings and was subjected to a thorough physical examination by other physicians. This examination, by an X-ray of the lungs, disclosed "an old healed tuberculosis." Scrogham was re-examined by several eye specialists on February 10, 1936, and the condition of both his eyes was at that time found to be...