Ness v. Diamond Asphalt Co.

• Decision Date: 11 June 1964
• Docket Number: No. 10630,10630
• Parties: Mrs. Bergeliot NESS, Thorwald (Tom) Ness, Fatal, Claimant and Appellant, v. DIAMOND ASPHALT COMPANY, Inc., Employer, and Industrial Accident Board, Defendant and Respondent.
• Court: Montana Supreme Court

Page 43

393 P.2d 43

143 Mont. 560

Mrs. Bergeliot NESS, Thorwald (Tom) Ness, Fatal, Claimant and Appellant, v. DIAMOND ASPHALT COMPANY, Inc., Employer, and Industrial Accident Board, Defendant and Respondent.

No. 10630.

Supreme Court of Montana.

Submitted Feb. 3, 1964.

Decided June 11, 1964.

D. J. Sias, Oscar Hendrickson, (argued) Chinook, for appellant.

L. V. Harris, (argued) Helena, for respondent.

DOYLE, Justice.

This is an appeal by claimant Ness, hereinafter referred to as appellant, from a judgment of the district court of the twelfth judicial district affirming a ruling of the Industrial Accident Board. The Board had ruled that appellant was not entitled to workman's compensation by reason of the death of Thorwald Ness, husband of claimant.

Thorwald Ness was found dead in a lavatory on his employer's premises on January 8, 1958. The lavatory was a small room, about 5 feet long, 4 feet wide and 7 feet high. It was heated by live steam of around 280? temperature passing through a radiator. The room temperature was estimated as between 80? and 100?. Apparently Ness had completed attending to his comfort, had stood up, in order to reach the cord to flush the toilet, and collapsed. When discovered, Ness was up on one leg, resting on the other, with his face, neck and hand on the radiator. He had burns and some bruise marks on his neck, face, back of his hand and forehead.

Thorwald Ness, at the time of his death, was a 64-year-old male, who for approximately five years past had been, and was still, employed by the Diamond Asphalt Company as general maintenance man and laborer. Because of his advanced age and condition, his employer delegated the lighter tasks to him, allowing him to decide when he wanted to work and encouraged him to get other help if he had anything to do that would require assistance. His regular work week consisted of eight-hour days and five days per week.

On the date of Ness's death, he had worked his regular eight hours, gone home for the evening meal and returned to work to clean the office areas.

The area immediately involved in the death of Ness consisted of three separate buildings: The office building approximately 50 feet north of the laboratory building and the boiler room building approximately 50 feet east of the laboratory building. The lavatory in which Ness died was located in the boiler room building. All of the buildings were located near ground level.

Early in the evening Ness was observed obtaining a bucket of water from the boiler room building. About an hour before Ness's body was discovered, Ness walked from the office building to the boiler room building via the laboratory building. The outside temperature was near zero.

As Ness passed through the laboratory building, he was observed by a fellow worker, one Kessner. Kessner noted that Ness didn't look good--that he was pale. They exchanged remarks and Ness stated that he didn't feel too good.

After Ness had been in the lavatory for a length of time Kessner and another worker checked the lavatory, found the door locked, looked through the ceiling and discovered Ness' body in the position previously described.

Ness's death was medically defined, by the examining doctor, as resulting from a myocardial infarction due to coronary thrombosis. No autopsy nor other medical examination were performed. Dr. Overy, an expert cardiologist who reviewed this case, reported there was the possibility that this myocardial infarction secondary to a coronary thrombosis followed a severe hemorrhage from a pre-existing duodenal ulcer.

There was no medical history of Ness having heart trouble although, by his own conclusion, his heart did bother him. He had been observed having intermittent spells of heavy breathing. There was a history of high blood pressure and ulcer trouble for some years prior to his death.

No additional testimony was offered at the trial court from that taken at the Industrial Accident Board hearing and there appeared to be no conflicting testimony.

The trial court found as part of its findings of fact:

'IV. The evidence establishes that the deceased died of a myocardio infarction which was not caused by, nor induced by any exertion, or force imposed on him by his employment.

'The evidence fails to establish that heat in the premises where he was found dead caused or contributed to the myocardio infarction which resulted in his death.

'V. The preponderance of the evidence establishes that the death of the deceased, Thorwald (Tom) Ness was due to natural disease processes in his coronary arteries and was not in any way influenced or caused by the demands of his employment.'

Claimant predicates her first two specifications of error on these findings of fact and alleges that they are without support in the evidence and are contrary to the creditable evidence in the records.

Claimant's third specification of error is: 'That the evidence is not sufficient to justify the Findings of Fact, Conclusions of Law and Judgment nor any of them.'

The fourth and final specification of error is: 'That the Findings of Fact, Conclusions of Law and Judgment herein are contrary to the evidence of record and the law.'

In litigation under the Workmen's Compensation Act, the Act is to be construed liberally and when in doubt, the doubt is to be resolved in favor of the employee. Richardson v. J....