Mehlum v. Nunda Co-op. Ass'n, 9289

• Court: Supreme Court of South Dakota
• Citation: 56 N.W.2d 282,74 S.D. 545
• Docket Number: No. 9289,9289
• Parties: MEHLUM v. NUNDA COOPERATIVE ASS'N et al.
• Decision Date: 30 December 1952

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56 N.W.2d 282 74 S.D. 545 MEHLUM
v.
NUNDA COOPERATIVE ASS'N et al. No. 9289. Supreme Court of South Dakota. Dec. 30, 1952.

[74 S.D. 546] Gene McDonnell, Tom Kirby, Jr., Sioux Falls, for defendants and appellants, Nunda Cooperative Ass'n and Western Surety Co.

Cherry, Braithwaite & Cadwell, Sioux Falls, J. I. Hossack, Spencer, Iowa, for defendants and respondents, Linnihan and Momsen and Hawkeye Casualty Co.

L. F. Ericsson, Madison, for respondent Emma Mehlum.

ROBERTS, Judge.

The finding of the Industrial Commissioner in substance was that the death of Julius M. Mehlum on February 18, 1950, resulted from an injury arising out of and in the course of his employment with the appellant Nunda Cooperative Association. Payments to the widow of decedent were ordered. The Circuit Court affirmed the award. The questions presented on appeal are whether the evidence established the relation of employer and employee between said appellant and decedent and whether the cause of his death arose out of his employment if such relationship existed. Claimant insists that her husband met his death by an intracranial hemmorrhage caused by a fall. Appellants contend that decedent was an employee of respondent Linnihan & Momsen and that the hemorrhage was due to natural causes and was not produced by falling from a truck box while decedent was loading grain at appellant's elevator in Nunda.

The burden of proof rested upon claimant to prove by a preponderance of the evidence the facts necessary to establish a right to compensation. Wilhelm v. Narregang-Hart Co., 66 S.D. 155, 279 N.W. 549. It has been repeatedly held that a reviewing court is forbidden to trespass upon the

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defined jurisdiction of the Industrial Commissioner, the trier of facts, and his findings must be accepted if there is any substantial credible evidence in support thereof. Edge v. City of Pierre, 59 S.D. 193, 239 N.W. 191, and cases cited. Claimant cannot prevail if the factors necessary to support the claim are left to mere speculation and conjecture. The essential facts, however, need not necessarily be proved by direct evidence, but may be established by reasonable inferences drawn from facts shown. Edge v. City of Pierre, supra; Schlichting v. Radke, 67 S.D. 212, 291 N.W. 585.

[74 S.D. 547] We first consider the contention that the finding that the hemorrhage was caused by a fall from the truck is not warranted either by direct evidence or by facts from which an inference can reasonably be drawn. It is plain that if the hemorrhage was not caused by a fall it could not be found by the Commissioner that death arose out of the employment. There was evidence of the following facts: Decedent was 63 years of age and in good health. He was engaged in the evening of February 9, 1950, at the elevator of the appellant cooperative in Nunda, South Dakota, in shoveling and leveling oats elevated into a truck box. That evening at about 11:00 o'clock, the manager of the elevator found decedent on a concrete surface near the truck 'lying face down'. Ed Momsen, the truck driver, was asleep in the cab of the truck. The manager testified: 'I never knew what happened so I asked him if he fell off the truck, and he answered me no. I woke Momsen up, and after that we finished loading the oats, and Mehlum stood up, too. We din't know how bad he was hurt. * * * He appeared to be dazed. * * * I helped him sit up there before I got Momsen.' They finished loading the truck in fifteen or twenty minutes and then assisted decedent to the office in the elevator. Continuing, this witness said: 'We walked on each side of him. He was not standing at the time that we came over to him. He fell down again. * * * He seemed to be cold'. During the forenoon of the following day decedent was removed from his home to a hospital. Death followed on February 18, 1950. He did not at any time fully regain consciousness.

The attending physician performed a lumbar puncture and found the spinal fluid bloody. He also found a fracture of the right kneecap and numerous contusions and abrasions over the right shoulder, forearm, knee, thigh and leg and on the opposite extremities to a lesser degree. The doctor called as a witness by claimant testified on direct examination as follows:

'Q. What would your opinion be as to the cause of the fractured kneecap and contusions and abrasions that you found? A. From the history, no one saw him fall, but he was found near this truck and from all evidence had apparently fallen, and from the fractured kneecap one would have to [74 S.D. 548] expect that something like that would have happened to him. * * *

'Q. What is your opinion as to the cause of death? Did Mr. Mehlum suffer a stroke and then fall, or did he fall and then so hurt his head to cause an intracranial hemorrhage that way? A. As far as I can see, the Lord only knows. It's my opinion that intracranial hemorrhage caused the death. I don't know whether he had this before or after he fell.

'Q. Would you believe, doctor, that a fall of such force as to cause the fracture and contusions would have been sufficient to cause the intracranial hemorrhage which was found? A. Yes.

'Q. Assuming that Mr. Mehlum fell out of this truck in question onto this concrete surface and suffered contusions as you testified, would it be your opinion that this was the cause of the intracranial hemorrhage? A. Yes, I think that's possible.

'Q. You wouldn't be able to determine definitely whether or not it might have been a stroke, or that he fell and the hemorrhage resulted from the injury on the fall? A. That's correct.

'Q. Did you examine the outward appearance of Mehlum? A. Yes.

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We had one X-ray view of his skull. We couldn't see any definite fracture on this X-ray. I might also state that the determining of a fracture in the skull is sometimes very difficult. If it is obvious, it is easy, but because of many lines and shadow markings and so forth in a skull, it is difficult to determine whether a fracture is there or not. It is hard to tell with one X-ray.

'Q. When a man has a stroke, what is the sequence of events? A. I would say that as a rule, with a severe hemorrhage as in this case, that I wouldn't expect him to be too active.

'Q. Is the fact that he sat up later and talked of any aid to you in forming an opinion as to whether a stroke or a fall is more likely? A. May not be of too great help. It would be possible for a patient that had suffered a stroke to come back somewhat for a time, but dazed and so on, and lose consciousness afterwards, and it would also be possible [74 S.D. 549] for one who had an intracranial hemorrhage due to a fall to do the same thing.

'Q. This man apparently after half an hour sat up. Is that the usual history of a stroke? A. No, it is not the usual history of a stroke. Assuming that it would have been a stroke, the bloodiness of the spinal tap would tend to indicate what I would call a heavy stroke. It doesn't seem likely that one would sit up after such a stroke. It probably would be less likely in case of a stroke that it would be in the case of a fall causing intracranial hemorrhage.

'Q. You stated that from the amount of the blood in the spinal fluid, if it had been a stroke that would have been a severe stroke? A. Yes.

'Q. Just assuming if it had been a stroke, how severe would that amount of blood have indicated, and what would have been the amount of time that Mr. Mehlum would have survived after that time? A. Mehlum lived about eight days, I believe.

'Q. Would there have been any difference in the length of time he could have been expected to survive on the...