Littell v. Lagomarcino Grupe Co.
| Decision Date | 09 January 1945 |
| Docket Number | 46567. |
| Citation | 17 N.W.2d 120,235 Iowa 523 |
| Parties | LITTELL v. LAGOMARCINO GRUPE CO. |
| Court | Iowa Supreme Court |
Fisher & Fisher and John D. Randall, all of Cedar Rapids, for claimant-appellee.
Jordan & Jordan, of Cedar Rapids, for employer-appellant.
Kenneth Littel, 18 years old, worked for the employer-appellant during July and early August, 1941. He died October 30, 1941 of acute myocarditis which the doctor defines as inflammation of the heart muscles.
His father claimant-appellee, has instituted this proceeding for compensation, claiming death was due to 'a personal injury arising out of and in the course of his employment * * * on the 4th day of August, 1941.' It was alleged that deceased employee, while unloading a case of canned goods slipped and fell, suffering a severe strain of the heart which caused his death.
By an amendment filed at the close of the evidence claimant alleged that decedent 'suffered a personal injury * * * during the latter part of July or the early part of August, 1941 resulting in temporary or permanent disability; or temporary and total disability; and death.'
We have recently pointed out that in proceedings of this character the application is not to be judged by technical rules of pleading nor is the same conformity of proof to allegation necessary as in ordinary action. Cross v. Hermanson Bros., Iowa, 16 N.W.2d 616.
On this appeal we are asked to determine whether there was competent and sufficient evidence: (1) Of an injury arising out of and in the course of employment; (2) that such injury caused or hastened death; (3) that the employer had notice or knowledge under section 1383, Iowa Code, 1939; and (4) that claimant was a dependent parent under section 1402 of said Code. If there was, the commissioner's findings and decision are, of course, final. Sections 1402, 1453, Iowa Code, 1939.
I. The only evidence of any accidental injury or of injury growing out of or attended by any special incident or unusual occurrence is found in the testimony of several witnesses as to certain statements or declarations of decedent. Its admissibility is earnestly challenged by appropriate objections. No eyewitness testified to any of the accidents or occurrences referred to. The declarations of decedent are claimed by appellee to be admissible as part of the res gestae. A brief resume is in order.
It appears that on several occasions the employee quit work in the afternoon and after arriving home (at his sister's) told witnesses of some accidental injuries. Once he said he fell while carrying a sack of sugar upstairs; on another occasion, that he slipped, in the back end of a wet truck, with a couple of cases of peas, or, as another witness testified, 'while picking up some canned goods.' At another time he said he 'caught a bunch of bananas and hurt his side.'
On none of these occasions did it appear clearly when the accident referred to by decedent had occurred or how long before the making of the statement. At one of these times, one witness said, he appeared to be suffering pain and breathed 'very fast like it was hard for him to get any air at all.' He thought he had a rupture. He complained that 'it hurt him on the left side in the front of his body.' He remained home that time, still suffering pain, until the second morning after.
The time he told of being hurt catching the bunch of bananas his sister does not give any details as to apparent suffering but she thinks after that 'he worked till the end of the week and never worked again.' One of the other witnesses said 'he complained of his stomach muscles hurting right under his chest and that was the reason why he was in bed and lying down.'
These occurrences were during the latter part of July and the early part of August. One witness said two of them were about a week apart, one after July 25, the other before August 1st. The sister said one was the latter part of July and another about a week later. The third witness mentioned the first week of August.
We have attempted to set out only enough to indicate the character of the testimony. For reasons that will appear later we do not deem it necessary to go into greater detail or to pass upon the admissibility of these declarations of decedent.
II. There is, however, competent evidence of injury apart from the special incidents or accidents referred to in these statements of decedent. One witness testified that Kenneth drove the employer's city truck, loaded and unloaded it, handled sugar and canned goods and all kinds of vegetables. The canned goods weighed 48 to 50 lbs. per case, the sugar 100 lbs. He hauled and handled any kind of merchandise the employer sold, delivering the groceries to stores in the city.
His sister, already mentioned, testified that when he was about ten years old he had swellings in the joints of the knees or elbows that continued for about a week. His stepmother who raised him said he had pain in his knees and elbows 'on and off since he was 10.' His athletic director in high school, who had taught physical education fifteen years, made endurance tests of his pupils in 1939, 1940 and 1941, while Kenneth was in high school. He reported Kenneth as underweight and slightly under standard as to endurance in 1939 and 1940. In 1941 he did not think it advisable for Kenneth to take the test because 'he did not appear to be in the best of health as the result of my observations during the basket ball season.'
Kenneth's employment commenced immediately upon his graduation from high school in 1941. There is no evidence that he was examined physically, preparatory to entering appellant's employment.
Dr. Hecker, the physician and surgeon of appellant-employer, saw the employee August 6, 8 and 13, 1941. As a witness for claimant-appellee he testified the boy told him on the 6th that 'he was helping unload bananas and hurt his left side.' This and other history elicited from him by the doctor were received by the deputy commissioner 'for the purpose of evaluating the diagnosis and opinions which may hereafter be expressed by the witness.'
The doctor said he was 'tender in his left side * * * yet I was unable to find anything definite other than some tenderness in the area mentioned.' On August 8th 'he felt a little sore more towards the front, rather than to the flank as he had before.' On the 13th, the doctor said, he claimed to be weak and short of wind and to have some tenderness across the abdominal muscles. He told the doctor he usually weighed 154 but he was down to 140 pounds. (His height was 5 ft. 10 in.) He had been coughing for a week but had no night sweats. 'He kept saying he felt his work was heavy; so I examined him again.' Finally the doctor, feeling there was some cause for the weakness and shortness of breath, checked his heart and found it to be enlarged, his pulse rate around 108 'and he also had an occasional skip beat or extra systole.'
After finally quitting work in early August (the exact date not being shown in the record), Kenneth left Cedar Rapids and lived with his father near Davenport. Dr. White saw him there suffering with acute decompensation of the heart--'the heart striving to meet the body requirements of the blood flow.' There was an enormous enlargement of the heart. His whole chest would heave with each beat. 'I doubted whether he would live through the night.'
Dr. White saw him numerous times thereafter. By September 27th he had improved markedly. The rapid or difficult breathing was gone. His pulse was 84. On October 24th his pulse was up to 90, indicating 'that the heart had begun to struggle again.' He told the doctor of a recent cold 'which (the doctor said) helped to account for this exacerbation in his cardiac symptoms.' On October 25th he was 'on the verge of decompensation' and on the 30th he died.
Dr. White, on cross-examination, gave his opinion of the cause of his condition on October 24th to date of death:
The testimony of Dr. Hamilton is based on hypothetical questions. He did not examine the patient. He said the greatest cause of heart trouble in younger people is rheumatic fever which is usually accompanied by swelling and pain in the joints. He expressed the definite opinion that the myocarditis that caused death 'very probably' resulted from the hypertrophied heart found by Dr. Hecker. On cross-examination he explained that by 'very probably' he meant that he didn't 'know for sure'--'it might and it might not.'
Dr. Korns testified unequivocally that from the heart condition found by Dr. Hecker on August 13th it was likely the patient had a pre-existing weakness of the heart for at least a month
This witness was first questioned as to his opinion based upon a hypothetical question that included the various accidents referred to in decedent's statements heretofore referred to--that is, the fall with the canned goods, the fall with the sugar and the catching of the bananas. He said these would have been quite likely 'to cause the symptoms of heart failure found by the company doctor on August 13, 1941.' However, Dr. Hecker said he could not see 'that the catching of the bananas had anything to do with his heart ailment.'
Later questions described the events after the employee quit work his condition on September 7th, 27th and other dates to and...
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