Magazine v. Shull
| Decision Date | 25 April 1945 |
| Docket Number | 17358. |
| Citation | 60 N.E.2d 611,116 Ind.App. 79 |
| Parties | MAGAZINE v. SHULL et al. |
| Court | Indiana Appellate Court |
Appeal from Industrial Board.
Proceedings under the Workmen's Compensation Act by Herbert Schull against Abe Magazine and another for compensation for loss of sight of both eyes resulting from an alleged accidental injury. From an award of the Industrial Board granting compensation, Abe Magazine appeals.
Affirmed with statutory increase.
Everett E. Rasor, of Warsaw, and S. K. Frankenstein, and James P Murphy, both of Fort Wayne, for appellant.
Brubaker & Rockhill, of Warsaw, for appellees.
On December 30, 1944, the Industrial Board of Indiana awarded compensation to the appellee Herbert Shull in the sum of $8.80 per week for a period of 500 weeks for loss of sight in both eyes resulting from an accidental injury suffered by said appellee and arising out of and in the course of his employment by the appellant. The appellee Yetta Magazine was joined as a defendant below but the finding and award of the Industrial Board acquits her of all liability in connection with the matters in controversy and she has been made an appellee herein solely because she is a party of record. This appeal in no manner challenges the award in respect to her and therefore, when we use the word appellee, we refer to Herbert Shull alone.
The Industrial Board is charged with making an award that is contrary to law and in support of such charge but one basic proposition is urged, to-wit: that said award is not sustained by sufficient evidence. As it is only in the event there is absolutely no substantial evidence to sustain some necessary fact upon which the award is based that the award will be set aside for the reason here assigned, it becomes necessary for us to review the evidence briefly. Seymour Woolen Mills v. Ward, 1935, 100 Ind.App. 108, 192 N.E 892; Clayton v. Universal Construction Co., 1942 110 Ind.App. 322, 38 N.E.2d 887.
On March 13, 1942, the appellee was in the employment of the appellant who was at that time a coal and junk dealer in Warsaw, Indiana. The appellee's principal work was on a coal truck but he did whatever there was for him to do in the way of common labor in and about the appellant's business. On March 12, 1942, the appellant bought a load of cast iron, including some stripped automobile motors, from the Zimmer Wrecking Company of Warsaw and on the following day the appellee drove the appellant's truck to the place of business of said Zimmer Wrecking Company for the purpose of loading and hauling away the cast iron so purchased by the appellant. In loading the motor blocks one end of an I beam was placed on the ground and the other end on the truck bed and said motor blocks were skidded up the I beam into the truck. When injured the appellee was behind a motor block pushing it up the incline. It was raining, the ground was wet and, while so pushing, the appellee's foot slipped and the motor block slid back along the I beam whereby he was 'jerked and doubled up' and suffered a sudden pain like a 'hot knife' in the region of the stomach. He became cold and dizzy but after he had rested a few minutes the feeling passed off and he helped load another motor on the truck but again became cold and dizzy and was compelled to rest. He drove the truck back to the appellant's place of business, went into the office where he collapsed and became unconscious. After regaining consciousness he had two rectal hemorrhages. During the following week, although working some, he had recurrent spells of nausea, pain, dizziness and chill with occasional and short periods of unconsciousness. During the night of March 21, eight days after the accident, he had several hemorrhages, both oral and rectal, and the following day he was taken to the hospital where severe hemorrhages recurred almost immediately for which he was given blood transfusions and other treatment. On March 24, eleven days after the accident, he awakened totally and permanently blind, and an examination of his eyes disclosed that he was suffering from bilateral optical atrophy. Up to this time the appellee had had no trouble with his eyes and his eyesight had always been good. For some time prior to the accident, however, he had been suffering from a stomach and digestive disorder of sufficient seriousness to cause frequent vomiting and upon one occasion had been informed by his family physician that he had incipient stomach ulcers. Dr. E. O. Alvis, a specialist in diseases and surgery of the eyes, testified: In response to the question, 'Would you say, doctor, that the result might have occurred in this case?' the witness replied, 'Yes, it just easily could have happened.'
The appellant first insists that the record evidence is totally devoid of proof of any causal connection between the accident complained of and the subsequent hemorrhages suffered by the appellee. His argument in support of this contention runs something like this: There is no evidence of external trauma and if the hemorrhages occurred they must have resulted from the 'jerking and doubling up' experienced by the appellee at the time he slipped or because of the disease from which he was suffering at the time. Therefore, what caused the hemorrhages is a scientific fact capable of solution only through expert medical testimony. Drakulich v. Industrial Comm., 1940, 137 Ohio St. 82, 27 N.E.2d 932, 935. The evidence given by Dr. Alvis is all the medical testimony there is favor able to the appellee and it is wholly silent as to the cause of the hemorrhages.
It is true that Dr. Alvis made no pretense of testifying that the accident caused the hemorrhages. His testimony is confined solely to the causal connection between such hemorrhages and the appellee's blindness and if the rule of evidence announced by the Ohio case, supra, and relied upon by appellant, were the rule in Indiana, we would be inclined to consider his position well taken. He has...
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