De Long v. Iowa State Highway Comm'n

• Decision Date: 14 March 1941
• Docket Number: No. 45356.,45356.
• Parties: DE LONG et al. v. IOWA STATE HIGHWAY COMMISSION et al.
• Court: Iowa Supreme Court

229 Iowa 700

295 N.W. 91

DE LONG et al.

v.IOWA STATE HIGHWAY COMMISSION et al.

No. 45356.

Supreme Court of Iowa.

Dec. 10, 1940.

Rehearing Denied March 14, 1941.

Appeal from District Court, Clarke County; Homer A. Fuller, Judge.

This is an action under the Workmen's Compensation Act of Iowa wherein the claimants, by their aunt and next friend, claim the benefits of the act, as the dependent minor children of L. A. DeLong, whose death occurred while in the employ of the defending Commission. The Deputy Commissioner, sitting as sole arbitrator, allowed the claim. The Industrial Commissioner, upon the review hearing, reversed the decision and award of the arbitrator, and the District Court, on the appeal of the defendant, reversed the Industrial Commissioner's opinion and decision in review.

The judgment of the District Court is reversed and remanded for disposition in conformity herewith.

RICHARDS, C. J., and OLIVER, J. dissenting.John M. Rankin, Atty. Gen., and G. H. Clark, Jr., Sp. Asst. Atty. Gen., for appellants.

O. M. Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellees.

BLISS, Justice.

The appellants will be referred to in the singular, or as the commission, the industrial commissioner, as the commissioner, and the deputy commissioner, as the arbitrator.

The deceased had been in the employ of the Highway Maintenance Department of the commission as a common laborer, since sometime in the year 1933. His work was largely in Clarke County. His last day of service was on October 28, 1936. He was taken from his home, on November 1, 1936, to the Osceola Hospital, maintained by Dr. H. E. Stroy, and in which Mary E. Sampson, the “next friend” of the plaintiffs, was the superintendent, bookkeeper and X-ray technician. He remained at the hospital until his death, on November 18, 1936, from general septicemia, or blood poisoning.

No notice, demand, or claim, either written or verbal, was ever made upon the commission or anyone connected therewith, by the employee or his dependents, or anyone in their behalf, for any benefits under the Compensation Act, until L. L. Clement, in charge of all compensation cases for the commission, received a letter from the appellees' attorneys on this appeal, dated November 20, 1937, stating that DeLong had received an injury and inquiring about compensation in 1937. On September 21, 1938, almost two years after the alleged injury, the petition for arbitration was filed with the commissioner. It alleged that on or about September 28, 1936, DeLong, while using a compressed air drill to break paving, sustained injuries to his left hand, “either from the operation of the air drill or the hammer or some other part of the implement.” The petition also alleged that the said bruise to his hand was further injured on or about October 28, 1936, and aggravated. We state here that the record does not sustain this allegation of further injury or aggravation of the injury on or about October 28th, or subsequent thereto. The petition prayed for an award of $15 a week for 300 weeks, and for funeral, medical, and hospital bills. These bills, including those of Doctor Stroy and his hospital, were unpaid.

[1] The answer of the commission admitted the allegations as to employment, dependents, and death. It set out the amount of his wages, denied that the injury or death arose in the course of or out of the employment, and denied any notice to or knowledge by it that there was any proximate causal connection between the employee's death and his employment, as contemplated by Code Section 1383.

We need give no consideration to the matter of notice or knowledge as a bar to the claim under this section, since the commissioner held with the claimants on this issue. In referring to claimants' testimony thereon, the commissioner said that “it may be admitted (it) is quite unusual, and may be questionable whether or not it was sufficient to comply with the provisions of the law, * * * we are constrained to believe that while the weight of the evidence is not entirely free from doubt, much of which may be due to lapse of time * * * we are of the opinion claimant sustained the burden of proof in that respect, but in this the question upon whom the burden of proof may rest is not free from doubt. We are constrained to believe that want of such notice is an affirmative defense and if that be true the burden of proof would rest upon the defendant.” The commission did not appeal from this decision.

The contention of the appellant in this court is that the appellees failed to establish by a preponderance of the evidence that the disability and death of the employeewas caused by a personal injury arising out of and in the course of his employment; that the finding and decision of the commissioner that the appellees had so failed is conclusive; and that the trial court was in error in trespassing upon the jurisdiction and authority of the commissioner in its fact finding contrary to that of the commissioner, and in entering final judgment reversing the decision of the commissioner. One of the elements of this contention of the commission is that there is no support for the claim of the appellees that the disability and death arose out of and in the course of the employment, other than hearsay testimony, consisting of testimony, of the three plaintiffs and of Doctor Stroy, of declarations made to them by DeLong as to the cause of the disability of his left hand. Our careful examination of the record confirms this statement that the sole proof lies in these declarations.

In answer to the appellant, the appellees urge that the testimony of Doctor Stroy that the declaration of DeLong made to him a few days after the alleged injury was a part of the clinical history of the case, given to him for the purpose of diagnosis and treatment, and that it was not hearsay, but was substantive evidence of the facts declared. The appellees also contend that if the testimony be conceded to be hearsay, it was in the record for what it was worth, and that appellant cannot complain of its admission, because it made no objection that it was hearsay, or no motion to strike on that ground, and some of the declarations were again brought out by it on cross-examination. Appellees also insist that the facts in the record are not disputed, and that there is no sufficient, competent evidence to warrant the making of the commissioner's decision; that the commissioner erred in his legal conclusion as to the inadmissibility of the declarations, and that in reality he made no finding of fact. Appellees also urge, as did the trial court in its opinion, that regardless of what may have been the initial cause of the lesion on the left hand of DeLong, there was competent evidence that it was re-injured and aggravated and the infection was scattered through his system by the work which he was doing.

In order that our decision, and the respective contentions of the parties, may be better understood, we deem it necessary to summarize some of the material and relevant testimony. The commission maintained a crew of six men to repair the pavement where it heaved or sunk. It operated over a district of several counties under a foreman. Its equipment consisted largely of a concrete mixer and an air compressor operated by a gasoline motor, and a drill or hammer operated by compressed air, which was used in breaking the defective paving. The breaking implement consisted of a hollow metal sleeve or cylinder, with horizontal handles on each side fastened at its top. A rubber tube extended from the compressed air tank, and opened into the cylinder of the implement just described, just below the handles. The hammer or chisel bit, as it was called, was inserted and fastened in the opening at the bottom of the cylinder. The bit being used weighed about 90 pounds. The operator would admit the air into the cylinder by a trigger valve in the hose near the handles. The impulsions of air caused the hammer or drill to strike about 20 or 25 times a second. The whole implement necessarily vibrated but only the piston would rise and fall, and not the handles. The handles had a rubber covering or cushion around them. The operator did not have to hold it tight, but merely moved it as needed, and just balanced it to hold it up. On cross-examination by appellees, the foreman of the crew said that he never heard of an operator getting sore hands in using it. About September 15, 1936, DeLong was taken from the regular maintenance crew in Clarke County to work with the pavement breaking and repair crew in Decatur County. He traveled daily to and from his home in his work. He alternated with the other members of the crew in operating the pavement breaker. Mr. Hood, of Council Bluffs, was the foreman of the breaker crew. He testified that after quitting time on September 26 or 27, 1936, about two days before the breaker crew completed its work in Decatur County, DeLong rode with him from the work to Osceola. He testified that he noticed “a little red pimple on his hand, it was just small then.” He asked him if it hurt or bothered him in his work and he said that it did not, and he said nothing about what it was, or whether he hurt it in his work. He worked the next day without any apparent trouble. The next day, he left Hood's crew and rejoined his own in Clarke County. Mr. Perry, of Creston, a division maintenance engineer, testified that on September 29, 1936, DeLong rode with him from Leon to Osceola, and called his attention to a red spot on the back of his left hand and said that it hurt him some. He said nothing about receiving an injury, bruise or anything of that sort. Later he saw him in Clarke County and DeLong said it was a boil or carbuncle. Mr. Karns was his foreman in Clarke County. He testified that DeLong resumed his work with him in Clarke County about September 28th or 29th and worked every work day, except possibly one day, up...