Kerns v. Anaconda Copper Mining Co.
| Decision Date | 18 June 1930 |
| Docket Number | 6683. |
| Citation | 289 P. 563,87 Mont. 546 |
| Parties | KERNS v. ANACONDA COPPER MIN. CO. |
| Court | Montana Supreme Court |
Rehearing Denied July 14, 1930.
Appeal from District Court, Silver Bow County; Frank L. Riley Judge.
Proceeding under the Workmen's Compensation Act by Maria B. Kerns against the Anaconda Copper Mining Company, employer, for the death of her husband, John N. Kerns. Findings and judgment of the Industrial Accident Board denying compensation were sustained by the district court, and claimant appeals.
Affirmed.
Philip O'Donnell and H. A. Tyvand, both of Butte, for appellant.
L. O Evans and John V. Dwyer, both of Butte, for respondent.
Maria B. Kerns has appealed from a judgment of the district court of Silver Bow county sustaining the findings and judgment of the Industrial Accident Board, denying her compensation for the death of her husband, John N. Kerns, while in the employ of the defendant, Anaconda Copper Mining Company, and dismissing her claim therefor.
Kerns died at the Murray Hospital, in Butte, on June 8, 1928, as a result of septicemia, or blood poisoning. The following day a coroner's inquest was held, resulting in a verdict merely reciting that "deceased was hit by a rock that fell out of the hopper at the Washoe Sampler property of the A. C. M Co., according to the evidence introduced at the inquest and the cause of death, blood poison."
On August 12, 1928, Maria B. Kerns filed with the Industrial Accident Board her claim for compensation arising "out of the death of John N. Kerns * * * as a result of injury sustained on the 1st day of June, 1928," etc. Thereafter a hearing was had before the board, on which the testimony taken at the inquest and additional testimony was introduced. The board denied the claim and claimant appealed to the district court. The district court heard the matter on the record made before the board and additional testimony which it permitted to be introduced, and thereafter made findings in which it sustained the findings of the board and found "generally in favor of the defendant and against the claimant," and on these findings entered judgment affirming the decision of the board. Claimant moved for a new trial, which motion was denied, and thereafter appealed from the judgment.
The undisputed facts are as follows: Kerns had been in the employ of the defendant company for a long period prior to his death and had been married to the claimant for three years. For more than seven years Kerns had suffered from a large ulcer on the front of his left leg between the knee and ankle, which had been treated from time to time by different doctors with little success. On May 12, 1928, he sprained his right ankle and was confined to his bed under the care of Drs. Worden and MacPherson, physicians for the defendant company. The attending physicians, taking advantage of his enforced idleness, performed a "skin-graft" on the denuded area caused by the ulcer. On May 30 the condition of the ankle and of the skin graft was so satisfactory that Dr. Worden advised Kerns that he might return to work, but cautioned him to be careful of his left leg on account of the danger of infection. Kerns returned to work May 31 and worked that day and the day following, June 1, with his left leg bandaged. On the latter day he returned home at his usual time, about 4:15 p. m.; at 9 p. m. he had developed definite symptoms of blood poisoning, from the effects of which he died on June 8. During this period he was attended by three physicians. He made no complaint to the first or second doctor who attended him within twenty-four hours after the symptoms mentioned appeared, but on the day of his death, while in a semiconscious condition, told Dr. Person, according to the testimony of the doctor, that he was struck on the right leg by a rock. Deceased had a scratch on his right leg, noted by the undertaker after death.
The theory of the Workmen's Compensation Act () is that loss occasioned to an employee, by reason of an injury, shall not be borne by him alone but directly by the industry and indirectly by the public, and to accomplish the result intended, its provisions must be liberally interpreted. Dosen v. East Butte Mining Co., 78 Mont. 579, 254 P. 880. However, while every provision of the act will be liberally construed in order to carry out its humanitarian purpose and such compensation as the act permits will at all times be awarded, the Industrial Accident Board and the courts are bound by the provisions of the act and cannot award compensation in a case for which no provision is made in the act (Page v. New York Realty Co., 59 Mont. 305, 196 P. 871), or disregard the plain provisions of the act (Chmielewska v. Butte & Superior Min. Co., 81 Mont. 36, 261 P. 616).
The act is not framed on the theory of life insurance for employees, but on that of compensation for injuries sustained in the course of employment. Landeen v. Toole County Refining Co., 85 Mont. 41, 277 P. 615. In each case arising under the act, the burden rests upon the claimant to establish by a preponderance of the evidence that the injury or death resulted (a) from an industrial accident (b) arising out of and (c) in the course of employment. Wirta v. North Butte Mining Co., 64 Mont. 279, 210 P. 332, 30 A. L. R. 964; Nicholson v. Roundup Coal Co., 79 Mont. 358, 257 P. 270.
In order to prevail on the claim before us, under the above rules, it was necessary for the claimant to prove by a preponderance of the evidence that the deceased suffered an injury by reason of an industrial accident, and that that injury was the proximate cause of the infection and resulting death. As it is clear from the evidence that the infection entered the blood stream through the denuded area of the old ulcer upon which an operation had been performed a short time before, the burden rested upon the claimant to so prove that the injury suffered, if one was suffered, was upon that area, and that the symptoms exhibited by the deceased at 9 p. m. on the day of the alleged injury could have developed from infection germs entering the wound at the time or subsequent to the time the injury was received.
The question as to whether or not the deceased did, on June 1 suffer an injury to and upon the denuded area of his left leg, was passed by the Industrial Accident Board with the recitation: "On June 1st, while some conflicting testimony is in the record, it is practically admitted that he received a slight injury to the left leg which opened the old sore." The board then passed to a careful consideration of the remaining questions outlined above and, on findings clearly warrantting no other decision and sustained by practically uncontradicted testimony, decided that the infection entered the denuded area prior to the injury, which in no way contributed to the cause of...
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