Larke v. John Hancock Mut. Life Ins. Co.

Decision Date19 April 1916
Citation97 A. 320,90 Conn. 303
CourtConnecticut Supreme Court

Appeal from Superior Court, New Haven County; William S. Case, Judge.

Proceeding by Margaret Larke against the John Hancock Mutual Life Insurance Company and others for compensation under the Workmen's Compensation Act. From a decision of the Compensation Commissioner awarding compensation, defendants appealed, and from a judgment sustaining the findings and award of the Commissioner and dismissing the appeal, defendants appeal. Affirmed.

The commissioner found the following facts: The claimant was living with Henry J. Larke prior to his decease as his wife, and was a total and sole dependent of him. Larke had had a contract of employment with the defendant insurance company for more than 26 weeks next before his death, and had been in the employ of this company for 11 years, soliciting insurance and collecting insurance premiums. He was under the supervision of Mr. Radie, the district manager for the company, who laid out the route for him from day to day. The route for Thursday, February 26, 1914, covered from 15 to 20 miles, and on Friday, February 27, 1914, from 5 to 12 miles, and embraced a number of different places to reach which and cover the route required the use of a private conveyance and was through a region unprovided with public conveyances available for Larke's requirements in the regular course of his business, and Larke's business required him to visit definite persons and places at definite times, irrespective of weather conditions.

Prior to February 26th Larke was of good health and of rugged physique. February 26th was an unusually cold day. About 5:45 a. m. of that day Larke left his home and drove 15 or 20 miles in the regular course of his employment, and during this time suffered a personal injury, viz., the freezing of his nose and the tissues adjacent thereto, which produced a lesion of the skin and surface tissues of the area adjacent thereto. As a direct result of these injuries he contracted erysipelas, from which he died. His injuries were not due to any serious or willful misconduct, nor to intoxication, but arose out of and in the course of his employment.

From the award made the respondents appealed to the superior court, and from its judgment dismissing the appeal, the appeal to this court is taken.

Francis P. Guilfoile and Frank P. McEvoy, both of Waterbury, for appellants. Walter E. Monagan, of Waterbury, for appellee.

WHEELER, J. (after stating the facts as above). Several of the assignments of error are based upon findings which are claimed to be without the evidence or contrary to it. Two of these are of importance to the decision:

One, that the decedent on Thursday, February 26th, froze his nose and the tissues adjacent thereto and then suffered a frostbite. There was evidence that the day was very cold; that the decedent, a robust and healthy man, left his home at quarter to 6 in the morning of this day and drove in the course of his business 15 or 20 miles, making about 50 calls by going in and out of heated buildings; that when he returned home at 2 p. m. he complained of not feeling well; and that his face around the nose and eyes was a little red, and around the nose swollen. On the following afternoon a physician diagnosed his case as frostbite, and a physician testified that the assumed facts of this case as claimed by the plaintiff presented a case of frostbite. No physician testified otherwise, and no other evidence was offered in contradiction. Here were conditions which might have produced a frostbite, symptoms which indicated it, and a diagnosis of its existence on the succeeding day and the opinion of a reputable physician based upon the symptoms and conditions in evidence that the decedent suffered a frostbite on this Thursday. No conclusion other than that reached by the commissioner would have been a reasonable one.

Another finding that "as a direct result of these injuries he contracted erysipelas" is claimed to be unsupported by the evidence and scientifically impossible. The claim rests upon the assumption that the plaintiff's theory of the evidence is that the skin was punctured by frostbite suffered on this Thursday, and that the erysipelas developed on Friday, and upon the claim of the defendants that the medical testimony demonstrates that the first visible indication of erysipelas occurs in not less than 39 hours after the infection; hence the erysipelas could not have developed from the frostbite. The assumption that the erysipelas developed on Friday results from reliance upon Mrs. Larke's testimony that her husband told her that Dr. Goldstein had told him on Friday afternoon that he had erysipelas. The statement of what the husband said the doctor had said has no probative value as evidence, and the fact that it came in as a part of the cross-examination does not add to its probative value. But the doctor testified he diagnosed the case on Friday as frostbite, and on a later visit either on the first, or, as he thinks, the second, day following, he for the first time diagnosed the case as erysipelas. If Mrs. Larke's testimony in this particular could be regarded as evidence of probative value, it was for the trier to find the fact in the conflict between her testimony and that of the doctor, and likewise it was for the trier to determine the credibility of the doctor's testimony.

The first question for decision is whether the frostbite of the decedent was a personal injury "arising in the course of and out of his employment." The suggestion was made in argument, although not greatly pressed, that personal injury under our statute refers merely to accidental injury. The case does not at this time require us to pass upon the question whether the term personal injury in our act includes disease as well as accident Upon all authority, if it refers merely to accident, it must include the consequences of the accident whether a development of the injury from the derangement of the physical structure of the body or of a disease from the accident. The finding shows that the unusual exposure of the employment of the decedent to the weather caused a frostbite producing lesions of the face, through which the germ erysipelas entered and the disease erysipelas developed. We think the lesion, whether produced by a frostbite or a blow, must be held to be a personal injury within the act. In either case the injury would be the result of an untoward mishap. If the term "personal injury" be given its narrowest construction and confined to injuries of...

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