Indian Creek Coal and Mining Company v. Calvert
| Decision Date | 17 May 1918 |
| Docket Number | 10,129 |
| Citation | 119 N.E. 519,68 Ind.App. 474 |
| Parties | INDIAN CREEK COAL AND MINING COMPANY v. CALVERT ET AL |
| Court | Indiana Appellate Court |
Rehearing denied November 20, 1918, Reported at: 68 Ind.App 474 at 495.
From the Industrial Board of Indiana.
Proceedings for compensation under the Workmen's Compensation Act by Laura Calvert and others against the Indian Creek Coal and Mining Company. From an award for applicants, the defendant appeals.
Affirmed.
Charles E. Henderson and James L. Murray, for appellant.
LeRoy M. Wade and Arnold J. Padgett, for appellees.
The sole question presented by this appeal is whether the evidence was sufficient to sustain the finding of the Industrial Board that the death of Addison Calvert, of whom appellees were dependents, was the result of a personal injury "by accident arising out of and in the course of" his employment, within the meaning of the Workmen's Compensation Act. Acts 1915 p. 392, § 80201 et seq. Burns' Supp. 1918.
The evidence most favorable to appellees' cause, and which for the most part was uncontradicted, is to the following effect: On and for some time prior to January 3, 1917, decedent was in appellant's employ as a coal miner. As a rule he worked regularly when the mine was running. When the mine was not running he worked at the blacksmith's trade doing repair work, and also at times as a section hand on the railroad. His friends and acquaintances regarded him as a strong healthy man, and had no knowledge that he had any physical ailment. Prior to January 3, 1917, he had not required the services of a physician at any time. Occasionally, however, when coughing, he complained that his side hurt him. Periodically or occasionally he indulged in the use of intoxicants excessively, and at such times he laid off from work for a few days. At 7 o'clock on the morning of January 3, 1917, he went to work in room 12 of appellant's mine. His son, aged twenty-five, was working with him. About 8 o'clock, having a quantity of coal ready to load, he and his son went into room 11, adjoining room 12, for the purpose of shoving a partly loaded car from the former to the latter. The track extended from room 11 up grade for a distance, and then down grade into room 12. Decedent and his son attempted to push the car up over the grade, but found it too heavy for their strength. The son then called two other miners, Mr. Snap and his son, who were working in a room adjoining room 11, to come and assist in moving the car. The four workmen pushed the car up over the top of the grade. Snap and his son returned to their work and decedent and his son moved the car down grade into No. 12. Mr. Snap testified that when they came to assist decedent and his son, decedent "was talking the same as he always had--was cutting up and was all right as far as I knew anything about it--as far as I could tell he was a strong, hearty looking man," but that eventually "when we pushed the car on the switch there, he said 'Oh, my side' and he just went on and he never said anything more, and we just left and went back to our working place." Decedent and his son moved the car down the grade into room 12, and commenced to load it. The further account of the occurrence, as testified to by the son, is as follows: The son then went and got Mr. Snap and his son to stay with decedent while he went for help. Mr. Snap testified that: After returning from helping to push the car, "I don't believe we threw over a half dozen shovels in our car until his son came and hollered and we went into their room and found his father lying down on slack, holding his hand over his heart." Decedent died in the company's office at about 10:45 the same morning. When the collapse came decedent was loading coal in the ordinary way. He had just lifted a chunk of coal weighing thirty-five or forty pounds. The miners frequently loaded lumps weighing 75 to 100 pounds. The scoop that he was using weighed about 25 pounds loaded.
An autopsy was held on the body of decedent. It disclosed that the descending aorta had ruptured on the right side at a point about two inches below the arch; that a diseased condition existed at the point of rupture indicated by an unnatural thinness of the wall. There was expert medical evidence to the following effect: That such a diseased condition might result from any one of a number of causes, as chronic alcoholism, or a tubercular focus in one or more of the mediastinal glands lying next to the arterial wall; that the latter was probably the cause of the diseased condition as it existed in decedent; that there was no way to determine how long the thinning process had been going on; that it might have been several days or several weeks; that it is probable that the thinning process had been going on for several weeks; that when such a condition is caused by a tubercular focus, there will be a perforation with fatal hemorrhage sooner or later if the tubercular focus continues; that when such a condition exists any exertion or excitement which makes the heart beat more rapidly may produce a rupture; as the thinning continues a rupture might come while the patient is coughing or laughing, or performing ordinary work, or sleeping, or sitting still. A medical witness, who participated in the autopsy, gave it as his opinion that: "From the appearance of the wall and the condition we found there, it looked as though it might have been caused by a strain or exertion of some kind."
In determining the questions presented, since the finding of the board was in favor of appellees, we are required to consider only the evidence favorable to them as above outlined, together with all inferences reasonably deducible therefrom and favorable to their cause. The following is either directly established by or reasonably deducible from the evidence: That the shoving of the partially loaded car up over the grade required of decedent, and that he actually exerted, an unusual physical effort, both when assisted by his son alone and also when assisted by the Snaps in addition; as based on the expert evidence that such would be the effect, that such effort augmented the speed and increased the force of decedent's heart beats with the consequent added internal pressure on his diseased and weakened blood vessels; that the rupture of the aorta followed very shortly after the moving of the car, as indicated by the fact that the Snaps had thrown only about a half dozen shovels of coal until summoned back to decedent's assistance; and that such pressure on his blood vessels, induced as aforesaid, continued as a causative force until it terminated in the rupture; that the decedent became somewhat abnormal in physical condition while pushing the car, as indicated by his first outcry and his changed demeanor continuing thereafter, and that it is not improbable that the process of rupturing the aorta may have commenced when the car was being pushed.
Under the facts there can be no doubt that decedent suffered a personal injury, the rupture of the aorta, in the course of his employment, and that such personal injury speedily resulted in his death. We proceed to determine whether such personal injury was by accident arising out of the employment.
It is apparent from the evidence that decedent was afflicted with a very serious physical ailment. His ailment, however, was not necessarily incurable or of such a nature that it was certain to terminate fatally. Under the expert evidence such ailment was certain to terminate fatally only in case of the continuance of the producing cause which was not certainly known. His ailment, however, was such that it was not improbable that at any time, sooner or later, there might be a rupture of the aorta and a consequent death. But assuming that decedent was afflicted with a fatal malady certain to result in his decease sooner or later, and that such malady was a cause of decedent's death here, these facts alone are not sufficient to defeat appellees' claim. Such result would follow only in case his decease was in fact the result of his ailment progressing naturally and disassociated from any injury that he may have suffered by accident arising out of and in the course of his employment. If there was such an injury, and it concurred with the ailment in hastening the latter to a fatal termination, then the right to an award exists. On this subject the doctrine adopted by this court is thus expressed: "The courts, consistent with the theory of workmen's compensation acts, hold with practical uniformity that, where an employe afflicted with disease receives a personal injury under such circumstances as that he might have appealed to the act for relief on account of the injury had there been no disease involved, but the disease as it in fact exists is by the injury materially aggravated or accelerated, resulting in disability or death earlier than would have otherwise occurred, and the disability or death does not result from the disease alone progressing naturally as it would have done under ordinary conditions, but the injury, aggravating and...
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Indian Creek Coal & Mining Co. v. Calvert
... ... May 17, 1918. Dissenting Opinion, May 22, 1918 ... Appeal from Industrial Board. Proceedings under the Workmen's Compensation Act by Laura Calvert and others to obtain compensation for the death of Addison Calvert, opposed by the Indian Creek Coal & Mining Company, employer. From the award, the employer appeals. Affirmed. [119 N.E. 520] Charles E. Henderson and Jas. L. Murray, both of Indianapolis, for appellant. Le Roy M. Wade, of Vincennes, and Arnold J. Padgett, of Washington, for appellees. CALDWELL, J. The sole question presented by this appeal is ... ...