Laird v. State of Vt. Highway Dep't

• Court: Vermont Supreme Court
• Writing for the Court: STURTEVANT, Justice
• Citation: Laird v. State of Vt. Highway Dep't, 110 Vt. 195, 3 A.2d 552 (Vt. 1939)
• Decision Date: 03 January 1939
• Docket Number: No. 1654.,1654.
• Parties: LAIRD v. STATE OF VERMONT HIGHWAY DEPARTMENT et al.

3 A.2d 552

LAIRD

v. STATE OF VERMONT HIGHWAY DEPARTMENT et al.

No. 1654.

Supreme Court of Vermont. Washington.

Jan. 3, 1939.

Appeal from Commissioner of Industries; Howard E. Armstrong, Commissioner.

Proceeding under the Workmen's Compensation Act by Willis J. Laird against the State of Vermont Highway Department, employer, and the Travelers Insurance Company, insurance carrier. From an award in favor of claimant, defendants appeal.

Award annulled.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Theriault & Hunt, of Montpelier, for appellants.

George R. McKee, of Montpelier, and J. Boone Wilson, of Burlington, for appellee.

STURTEVANT, Justice.

This is an appeal from an award made to the claimant, Willis J. Laird, by the commissioner of industries.

On Sunday, January 2, 1938, the claimant, aged sixty-four years, was employed by the defendant employer, State of Vermont Highway Department, as watchman at the state garage on the main Montpelier Barre road. The foreman, one Tucker, talked with claimant at about 9:30 a. m., at which time claimant seemed to be in good health and Tucker noticed nothing unusual about him. At about 10 a. m. Tucker left the premises and returned about 12:30 p. m., entering the premises through the main gate. Tucker was driving a truck at the time he returned. As Tucker entered the premises he did not see the claimant and after putting his truck in the garage, went out to look for him. He found the claimant lying in the snow near one end of one wing of the open main gate of the premises. Claimant was in a comatose state, was paralyzed on his right side, and his condition was a result of cerebral hemorrhage. There was no evidence of any external injury. He was totally disabled from this time until the time of his death which occurred several weeks later. During the night preceding January 2, 1938, there was a snow fall of six or eight inches of heavy snow. Before leaving his home for work that morning claimant shoveled a path from his house to the road, a distance of from one hundred to two hundred feet. Claimant's duties included winding certain clocks at regular intervals, closing the main gate when he found it open and keeping the snow shoveled from in front of the three garage doors and from around the gates. No one saw claimant shovel any snow at the garage during the forenoon of January 2. No one saw claimant go to the gate and there was no evidence of what he was doing at the time he took the position in which he was found on the ground nor how he reached that position.

The claimant had some degree of arteriosclerosis in his cerebral arteries and the hemorrhage was caused by the rupture of such an artery that had become brittle due to calcification of its walls.

Among the questions certified by the commissioner for review in this court are the following: (1) Whether the following findings of fact by the commissioner of industries are or are not legally supported by the evidence:

(a) "The claimant (referring to the place and condition in which he was found by Mr. Tucker) was apparently in the act of closing one wing of the gate when he fell to the ground."

(c) "I find that the claimant's exertion in shoveling snow before and during his period of employment in the forenoon accelerated or aggravated his arteriosclerosis condition in the cerebral circulation."

(d) "I would infer from these facts that the claimant went to the gate to close it and that the exertion of walking to it or the strain of attempting to close it was the immediate cause of the cerebral rupture, and that the over-exertion of shoveling snow during the morning was only a contributing factor or cause. In my opinion this is a natural presumption, from all the circumstances, and an inference equivalent to legal proof of the fact."

(g) "I find and so hold that the accidental personal injury to the claimant arose out of and in the course of his employment."

Several other questions are certified but the case can be disposed of by considering those above set forth. The commissioner's certificate also contains the following statement: ...