Mrs. H. D. Morrill v. Charles Bianchi & Sons, Inc

• Decision Date: 02 January 1935
• Citation: Mrs. H. D. Morrill v. Charles Bianchi & Sons, Inc, 176 A. 416, 107 Vt. 80 (Vt. 1935)
• Parties: MRS. H. D. MORRILL v. CHARLES BIANCHI & SONS, INC
• Court: Vermont Supreme Court

176 A. 416

107 Vt. 80

MRS. H. D. MORRILL v. CHARLES BIANCHI & SONS, INC

Supreme Court of Vermont

January 2, 1935

In Vacation after November Term, 1934.

Master and Servant---Workmen's Compensation Act---Pre-existing Disease Aggravated and Accelerated by Injuries Received in Accident Arising Out of and in Course of Employment---Sufficiency of Evidence To Show That Disease "Resulted from the Injury"---Trial---Argument of Counsel---Harmless Error---Failure of Court in Charge to Jury To Distinguish between Compensable and Noncompensable Diseases as without Error in View of Special Questions Submitted to Jury---Objection to Charge Not Made Below---Exclusion of Question Whether Servant's Unmarried Daughter over 18 Years Old Was Supported by him at Time of His Injury---Insufficiency of Evidence To Take Dependency of Children over 18 Years Old to Jury---Manner of Construction of Workmen's Compensation Act---Evidence---Judicial Notice.

1. In proceedings under Workmen's Compensation Act by widow of deceased workman to recover compensation on behalf of herself and two alleged dependent children, held that, where evidence tended to show that decedent died from pre-existing disease which was aggravated and accelerated by his injuries, by accident arising out of and in course of employment, so that he died earlier than he would but for such injuries defendant's motion for directed verdict was properly denied.

2. In such proceedings, where evidence showed that workman had sustained injuries "by accident" arising out of and in course of employment, and these injuries aggravated or accelerated latent or inactive pulmonary tuberculosis, resulting in his death from pulmonary tuberculosis, held that disease "resulted from the injury" within meaning of Workmen's Compensation Act.

3. In such proceedings, error, if any, of claimant's counsel in using word "insurance" in reference to Workmen's Compensation Law, held rendered harmless by its prompt withdrawal by such attorney and instruction of court to jury to disregard it.

4. In such proceedings, failure of court in its charge to distinguish between compensable and noncompensable diseases held without error, in view of special questions submitted to jury as to whether certain conditions existed and, if so whether they produced certain results, upon answers to which it was for court to say whether such findings entitled claimant to compensation, notwithstanding one general question as to whether claimant was entitled to death benefit under Workmen's Compensation Act, since answer to latter question would necessarily be deduction from answers to other specific questions which court would have been compelled to draw from them had general question not been submitted.

5. In such proceedings, objection to charge not made at trial below will not be considered in Supreme Court.

6. In such proceedings, exclusion of question whether claimant's unmarried daughter, over 18 years of age, was supported by workman at time of his decease, held proper such evidence, standing alone, having no tendency to show that she was incapable of self-support which was test of her dependency under statute.

7. In such proceeding, where issue was whether claimant's children, over 18 years of age, were incapable of self-support, evidence that daughter was not working at time of workman's decease, and that son was then in school, where he worked for his board, his father contributing toward his education, and that son was not then supporting himself, held insufficient to take issue of dependency as to either child to jury.

8. Workmen's Compensation Act is to be liberally construed, but Supreme Court cannot ignore plain intent of Legislature that child over 18 years of age must be unmarried and "incapable of self-support" to be classed as dependent.

9. It is matter of common knowledge that many parents are supporting children who are capable of self-support.

APPEAL from decision of commissioner of industries in proceedings brought by widow of Hiram Morrill in behalf of herself and two alleged dependent children, both over 18 years of age. The commissioner awarded compensation to widow for workman's total disability from date of his injury to date of his death, but denied death benefits to said widow and children, and they appealed from said decision to Washington county court. Trial by jury at the March Term, 1934, Washington County, Sturtevant, J., presiding. On defendant's motion verdict was directed against the children on the ground that they were not dependents within meaning of Workmen's Compensation Act, but defendant's motion for a directed verdict against claimant, for death benefits as widow under act, was denied. Verdict for said claimant for such benefits, and judgment thereon. Both claimant and defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed, to be certified to the commissioner of industries.

Webster E. Miller and Finn & Monti for the claimant.

J. Ward Carver for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SLACK

Hiram Morrill, while operating a carborundum saw for defendant, fell off the platform of the machine and injured his left hip, and, it was claimed, his left side and chest, and died of acute pulmonary tuberculosis seven weeks later. This proceeding is brought by his widow under the Workmen's Compensation Act, on behalf of herself and two alleged dependent children, James and Mary, to recover compensation. The commissioner of industries found that the children were not dependents, but that the widow was, and awarded her compensation to the time of Morrill's death. She appealed to Washington county court, where a trial by jury was had.

At the close of claimant's evidence defendant moved for a directed verdict on the grounds, in effect, that there was no evidence tending to show that the fall and resulting jar and bruises Morrill received served to infect his system with the germs of tuberculosis; that the evidence showed that he had silicosis at the time he was injured; that the germs of disease do not enter the system through such an injury as he received; that the disease from which he died did not result from his injury but from his occupation as a granite cutter, and that if his fall and the resulting jar and injuries served to accelerate the action of it and produce death earlier than the disease would otherwise have done, compensation was not allowable under our act because his disability and death did not result from accidental injuries. It also moved for a directed verdict as to the children on the ground that the evidence did not show that they were dependents within the meaning of the act. The motion respecting the children was granted subject to claimant's exception, and as to the other grounds it was denied. At the close of all the evidence such part of the motion as had previously been denied was renewed; it was again overruled, and defendant excepted.

Several questions were submitted to the jury, but no general verdict unless question 8 be so construed. Certain of the questions were, in substance, as follows: (1) Was Mary a dependent of deceased at the time he was injured? (2) A like inquiry regarding James. (3) Did the injury the deceased sustained weaken his resistance to disease to such an extent that he contracted a disease or condition that caused his death at the time he died? (6-a) If there was present in the deceased at the time of his injury any diseased condition, what was the nature of it? (7) Would Morrill have died when he did from any disease or condition present in his body at the time he was injured unless such injury materially aggravated or accelerated such disease or condition? (8) Is claimant entitled to death benefit under the Workmen's Compensation Act?

The remaining questions may be summarized as follows: Did deceased have a condition at the time he was injured that rendered him more susceptible to disease from such injuries? If so, did the injury influence such condition so as to cause death earlier than would have otherwise occurred? Did the injury sustained by deceased materially assist in bringing about any condition that in turn caused his death earlier than it would otherwise have occurred, and, if there was present in the deceased at the time of his injury any diseased condition, was it materially influenced by the injury so as to cause death earlier than it would otherwise have occurred? The claimant requested the court to direct the jury to answer question 6-a "Silicosis"; question 7 in the negative, and the rest, except 2 about which nothing was said, in the affirmative, and excepted to its refusal so to do. All questions, however, were answered as claimant desired except 1, 2, and 3, which were answered in the negative.

The case is here on exceptions by both parties. We first notice those of defendant. The merit of its exception to the overruling of its motion for a directed verdict depends upon what the evidence shows regarding the cause of Morrill's disability, and death on October 8, 1932, and the construction to be given the final clause of P. L. 6485, sub-division IV, which is as follows: " Personal injury by accident arising out of and in the course of such employment' to include an injury caused by the wilful act of a third person directed against an employee because of his employment, but not to include a disease unless it results from the injury. "

That Morrill received personal injuries by accident arising out of and in the course of his employment about eleven o'clock in the forenoon of August 27, 1932, was thereafter totally disabled until his death, and died the 8th of the following October of acute pulmonary tuberculosis, is...