Miller v. Gardner & Lindberg

• Decision Date: 11 January 1921
• Docket Number: 33659
• Parties: GEORGE MILLER, Appellee, v. GARDNER & LINDBERG et al., Appellants
• Court: Iowa Supreme Court

180 N.W. 742

190 Iowa 700

GEORGE MILLER, Appellee, v. GARDNER & LINDBERG et al., Appellants

No. 33659

Supreme Court of Iowa, Des Moines

January 11, 1921

Appeal from Dubuque District Court.--J. W. KINTZINGER, Judge.

IN the district court, this was an appeal by the claimant under the Workmen's Compensation Act from a finding by the industrial commissioner adverse to the claimant. The trial court reversed the order of the industrial commissioner, and fixed the compensation of the claimant. The defendant has appealed.

Reversed.

Chandler Woodbridge, for appellants.

Frantzen Bonson & Gilloon, for appellee.

EVANS C. J. WEAVER, PRESTON, and DE GRAFF, JJ., concur.

OPINION

EVANS, C. J.

The plaintiff was in the employ of the defendant, during which time he came under disability which resulted in loss of time of many weeks. His claim was that such disability resulted from an injury sustained by him in the course of his employment. That the claimant was an employee of this defendant, and that he did become disabled during the period of his employment, is without dispute. The crucial question is whether such disability resulted from any injury suffered by the plaintiff in the course of his employment. The finding of the arbitration committee and of the industrial commissioner was adverse to him. From such adverse finding he appealed, and his claim was sustained in the district court. The statute provides as follows:

"The findings of fact made by the industrial commissioner within his powers shall, in the absence of fraud, be conclusive; but upon such hearing the court may confirm or set aside such order or decree of the industrial commissioner, if he finds:

"(1) That the industrial commissioner acted without or in excess of his powers; or

"(2) That the order or decree was procured by fraud; or

"(3) That the facts found by the industrial commissioner do not support the order or decree.

"(4) That there is not sufficient competent evidence in the record to warrant the industrial commissioner in making the order or decree complained of.

"No order or decree of the industrial commissioner shall be set aside by the court upon other than the grounds just stated." Section 17, Chapter 270, Acts of the Thirty-seventh General Assembly.

The trial court held that the record would not permit a reversal of the order of the industrial commissioner upon any one of the first three grounds above quoted. It based its reversing order on the fourth ground above quoted. The discussion here therefore, will be directed to such fourth ground.

According to the claimant's evidence as a witness, his injury occurred on Saturday, December 21, 1918. He was one of a group of men engaged in unloading a car. The group contained from 7 to 10 men. A crowbar in his hands slipped in such a way that the end thereof struck him in the left groin. He continued his work throughout that day and throughout the Monday following, and worked for a time on Tuesday, at which time he reported his injury, and was sent to the doctor. The doctor, Bigelow, found a condition which seemed to baffle diagnosis. There was an extensive suppuration and breaking down of the tissues, with no external evidence of injury. Dr Slattery also aided in the care of the patient. Operations for hernia were performed both on the right side and on the left. The suppuration was so persistent that the doctors found it almost impossible to heal the surgical wounds. The theory upon which the case was reversed in the district court was that the testimony of the claimant himself and that of Dr. Bigelow were conclusive, in that there was no evidence contradictory thereto. It is true that the claimant testified to his injury, as already stated. It is also true that the accident or injury, if such, occurred in the presence of his fellow workmen, 7 to 10 in number, and that no one of them saw or heard anything to indicate that such an accident had happened. The explanation of this is that the blow was so slight that the claimant thought nothing of it, and did not mention it. While this is an appropriate explanation, it will not do to say that the fact that no one else observed the accident, and that the claimant himself did not mention it, was without probative effect as tending to negative the plaintiff's claim. It was evidence competent as a matter of law, and it did tend to reduce the weight and credibility of the claimant's testimony. One of claimant's witnesses at the hearing was Linehan, the timekeeper. The claimant made his first complaint to this witness on Tuesday. His statement to Linehan was not that he was struck in the groin, but "across the middle of the thigh." This evidence was also contradictory of the...