Joseph Giguere v. E. B. & A. C. Whiting Co.

• Decision Date: 05 February 1935
• Parties: JOSEPH GIGUERE v. E. B. & A. C. WHITING COMPANY ET AL
• Court: Vermont Supreme Court

177 A. 313

107 Vt. 151

JOSEPH GIGUERE v. E. B. & A. C. WHITING COMPANY ET AL

Supreme Court of Vermont

February 5, 1935

January Term, 1935.

Exception To Overruling of Motion for Directed Verdict in General Form but Containing Several Grounds---Master and Servant---Workmen's Compensation Act---Question Whether Injury is "Injury by Accident"---"Accident"---Statutes---Adoption of Foreign Statutes as Adopting Prior Judicial Interpretations Thereof---Construction of Workman's Compensation Act---Hernia Suffered by Workman under Such Conditions as To Constitute "Injury by Accident."

1. Where motion for directed verdict, though in general form, on several grounds, was in essence separate motion as to each of several questions submitted to jury, held that exception saved to overruling of motion was equivalent to separate exceptions to submission of each of questions to jury.

2. Ordinarily, question whether injury is "injury by accident" is mixed question of fact and law, but where facts are undisputed, question is one of law for court.

3. "Accident," as used in Workmen's Compensation Act, means an unlooked for mishap or an untoward event which is not expected or designed.

4. When statute is adopted from another state or country, if it has received judicial interpretation there prior to enactment in state where adopted, such judicial interpretations are adopted with it, unless some other sense is indicated by attendant provisions of statute.

5. Provisions of Workmen's Compensation Act must be construed liberally.

6. Where workman, while in course of his employment, and performing his regular duties of lifting trays of fibre weighing from 40 to 65 pounds each, in same manner as usual suffered a left inguinal hernia, which was first hernia he had ever had, held that hernia thus suffered was an "injury by accident" within meaning of Workmen's Compensation Act.

PROCEEDINGS UNDER WORKMEN'S COMPENSATION ACT. From a decision by the commissioner of industries denying claimant compensation for a hernia suffered while working for the defendant, claimant appealed to the county court. Trial by jury at the March Term, 1934, Chittenden County Cleary, J., presiding. Verdict for claimant. The defendants excepted. The opinion states the case. Order of commission of industries reversed, and judgment for claimant.

PRESENTMENT brought by Attorney General against respondent, charging him with unprofessional and improper conduct in his office as State's attorney. The respondent filed an answer in the nature of a plea of confession and avoidance. Heard on pleadings at the January Term, 1935, of Supreme Court, Washington County. Respondent suspended from office of attorney at law and office of solicitor in chancery for three months.

The order of the Commissioner of industries is reversed, and judgment that the claimant is entitled to compensation and medical and hospital services as provided by the Workmen's Compensation Act. To be certified to the commissioner of industries.

J. A. McNamara for the defendants.

Harold J. Arthur for the plaintiff and claimant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

THOMPSON

This is an appeal by the claimant to the county court from the decision of the commissioner of industries denying his claim for compensation for a hernia received by him while working for the defendant, Whiting Company, and which he claims was a "personal injury by accident arising out of and in the course of his employment" within the meaning of that expression as used in the Workmen's Compensation Law (P. L. 6480 et seq.). The commissioner found that the claimant's injury arose out of and in the course of his employment. He dismissed the case on the ground that the injury was not an "injury by accident" within the meaning of the statute.

The commissioner certified eight questions to the county court as provided by P. L. 6549. There was a trial by jury in that court. It is not necessary to repeat the questions certified. They were submitted to the jury in the form of a special verdict, and all answers were favorable to the claimant. The jury, by and all answers were favorable to the claimant. The jury, by their answers, found, in substance, that the claimant received a hernia which was an injury that arose out of and in the course of his employment; that his injury was caused by the lifting of a tray or rack from the floor; that it was sudden, unexpected and unforeseen; that it was a personal injury by accident; and that the claimant was entitled to compensation, medical and hospital expenses as provided by the Workmen's Compensation Law. Only two witnesses testified in the trial below, the claimant, and Dr. Lawrence who treated him and operated upon him for his hernia. Their testimony was not contradicted.

At the close of the claimant's evidence at the trial below, the defendants moved for a directed verdict in their favor on the grounds that, taking the evidence in the light most favorable to the claimant, it appears that there was no accident or anything that could be construed as an accidental injury that preceded the occurrence of the hernia; that without affirmative evidence of something preceding the injury which was out of the usual course of the claimant's employment in the way of external force or something unforeseen or unexpected in the work he was doing there was no evidence on which a jury could find that his injury was received by accident; that the evidence in the case tends only to prove an effect without any accidental cause. The motion was denied and an exception saved.

The plaintiff raises the question that on the face of the motion it is meaningless because, under the circumstances of this case, the court could not have entertained such a motion in favor of either party. While the motion for a directed verdict was in the form of a general motion, it was, in essence, a separate motion to each of the questions submitted to the jury, and the exception saved was equivalent to separate exceptions to the submission of each of the question to the jury. Downing v. Wimble, 97 Vt. 390, 392, 123 A. 433.

There is no dispute as to the facts. The Whiting Company manufactures fibre brushes. The claimant had worked for the company five years. The last year he worked as a fibre spreader in the combing department. His regular duties consisted of lifting trays of fibre which were stacked at the end of a bench, the top of which was three feet from the floor, onto the bench and spreading the fibre on it for use by another employee. The trays weighed from forty to sixty-five pounds each. On the morning of February 28, 1933, there were two stacks of trays about four feet high at the left end of bench. The claimant was lifting the trays from the second stack over the top of the first stack onto the bench. He had lifted about fifteen trays when he started to lift the bottom tray of the second stack which was on the floor. He was standing with his feet about three feet apart. He lifted the tray about eight inches from the floor when he felt a sharp pain on his left side. He received his hernia at that time. He kept on lifting and placed the tray on the bench. Then he stopped work for two or three minutes because he was faint and his side was paining him. He worked the remainder of the day although the pain continued to increase. He testified that he did not feel the pain coming on before he lifted the tray; that he rubbed his left side and felt a bunch there that had not been there before; that he had never had any pain in that region before; that when he received his hernia he was doing his usual work in the usual and regular way; that there was nothing different in the way in which he did his work on that day from the way in which he did it on previous days; that there was nothing out of the ordinary about his work that day.

The claimant's hernia was a left inguinal hernia, and it was the first hernia he had ever received.

Dr. Lawrence testified that some strain was necessary to cause a hernia. He was asked to explain how an inguinal hernia is brought on, and he replied:

"The structures in the inguinal region change from muscle to a type of issue which we call aponeurosis and this--we have three layers, one at right angles and one at a tangent to that. Now if any undue pressure or strain is put on that part these structures or fibres may be pulled out of their normal position so that a crevice may appear in this tissue. If they lie in normal position there is no opening, but if the pressure is applied, it is pulled out so this wall opens up and allows the passage of intestinal contents."

He was asked. "Now would you say the condition you found present with Mr. Giguere's case was a result of a strain, brought on as a result of a strain?" and he replied: "I would say that it was an abnormal condition, out of the ordinary." He also testified that the way a person stood would affect the position of the fibres of the inguinal region.

It can reasonably and fairly be inferred from the testimony of the doctor that the structures in the inguinal region of the claimant's body were in normal condition when the hernia occurred. It was his opinion that the hernia was caused by an abnormal strain of the structures in the inguinal region.

Under the provisions of our Workmen's Compensation Act (Public Laws, Ch. 264, § 6480 et seq.), an injury suffered by a workman must have an accidental origin to be compensable, and it must arise out of and in the course of his employment. P. L. 6504 provides that "if a workman receives a personal injury by accident arising out of and in the course of his employment," his employer or the insurance carrier shall pay compensation as provided by the act. I...