Nistad v. Winton Lumber Co.

• Citation: 61 Idaho 1,99 P.2d 52
• Decision Date: 13 December 1939
• Docket Number: 6711
• Court: United States State Supreme Court of Idaho
• Parties: REGINA NISTAD, Respondent, v. WINTON LUMBER COMPANY, a Corporation, and WORKMEN'S COMPENSATION EXCHANGE, Appellants

99 P.2d 52

61 Idaho 1

REGINA NISTAD, Respondent, v. WINTON LUMBER COMPANY, a Corporation, and WORKMEN'S COMPENSATION EXCHANGE, Appellants

No. 6711

Supreme Court of Idaho

December 13, 1939

EVIDENCE-EXPERT WITNESSES-HEARSAY-WORKMEN'S COMPENSATION-PLEADING-VARIANCE.

1. The testimony of an expert, as to his opinion, is not evidence of a fact in dispute, but is advisory only, to assist the triers of fact to understand and apply other evidence.

2. In proceeding by wife to recover compensation for death of husband, where issue was whether husband's death was due to disease or injury, wife's testimony describing husband's symptoms, his appetite, and his actions tending to show his physical condition, was admssible.

3. In proceeding by wife to recover compensation for death of husband, wife's testimony as to conversations between herself and husband, not in the presence and hearing of employer or insurance carrier, was improperly admitted because hearsay.

4. In proceeding by wife to recover compensation for death of husband, where expert opinion as to cause of husband's death was based on wife's hearsay testimony that husband not in presence of employer or insurance carrier, told her that he had had a funny experience, that he felt a strain as he finished unloading some planks, and tasted blood and felt choky and full in the chest, new trial was required.

5. Aggravation or acceleration of pre-existing disease or weakened condition, if caused by accident arising out of and in the course of employment, is compensable.

6. If employee came to his death by so exerting himself in line of employment as to aggravate preexisting disease or weakened condition of his body, and if his death was hastened as result thereof, compensation was not to be denied because of variance between allegation in claim and proof irrespective of whether injury was an acute dilatation of the heart, cerebral thrombosis, or cerebral hemorrhage. (I. C A., sec. 5-901.)

(The foregoing syllabus is by West Publishing Company, that following is by author of opinion.)

I. The testimony of an expert, as to his opinion, is not evidence of a fact in dispute, but is advisory, only, to assist the triers of fact to understand and apply other evidence.

II. Testimony of, one as to what he has observed of the symptoms appetite and conduct of another, tending to show the physical condition of the latter, is admissible in evidence. Conversations between them, not in the presence and hearing of the adverse party to the action, is hearsay.

III. Aggravation or acceleration of pre-existing disease, or weakened condition, if caused by accident arising out of and in the course of an employee's employment, is compensable.

IV. No variance is deemed material unless it has misled the adverse party to his prejudice in maintaining his action or defense on the merits.

APPEAL from an award, by the Industrial Accident Board, of compensation to claimant for the death of her husband. Reversed and remanded for further hearing.

Reversed and remanded.

Nelson and Nelson, for Appellants.

There was no accident proven. It was not shown that claimant received a personal injury caused by an accident arising out of and in the course of his employment. (Moody v. State Highway Department, 56 Idaho 21, 48 P.2d 1108; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189; Scarborough v. Beardmore, 55 Idaho 229, 41 P.2d 290.)

Findings of fact, rulings of law and award of the Industrial Accident Board will be set aside when based on hearsay testimony. (Sec. 43-1409, I. C. A.; Jensen v. Wheeler & England, 51 Idaho 91, 1 P.2d 624; Wilson v. Standard Oil Co., 47 Idaho 208, 273 P. 758.)

J. Ward Arney and Clay V. Spear, for Respondent.

The Idaho Supreme Court attaches finality to the findings of the board, based upon substantial and competent, though conflicting, evidence; the rules as to review of a verdict of a jury or finding of a trial court applying to appeals from the Industrial Accident Board. (Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515.)

Determination of facts being the exclusive province of the Industrial Accident Board, its findings on sufficient, though conflicting, evidence will not be disturbed. (Delich v. Lafferty Shingle Mill Co., 49 Idaho 552, 290 P. 204.)

MORGAN, J. Budge, Givens and Holden, JJ., concur. Ailshie, C. J., did not participate in the decision of this case.

OPINION

MORGAN, J.

This case has heretofore been before us on appeal by claimant from an order of the industrial accident board denying her compensation for the death of her husband. The opinion is reported in 59 Idaho 533, 85 P.2d 236. The facts stated in that opinion, which are applicable to this appeal, will not be restated.

The decision of the former appeal is expressed in the last paragraph of the opinion as follows:

"The order of the board is reversed and the cause remanded with directions that it take additional evidence as to the cause of deceased's death and make definite findings thereon."

That decision limited the board's investigation, at the hearing from which this appeal arose, to one question, to wit: Was decedent's death due to disease or was it due to an injury, by accident arising out of and in the course of his employment? The further hearing resulted in findings of fact, ruling of law and award of compensation in favor of claimant. This appeal is from the award.

The only conflict in the evidence is in the testimony of medical experts. A physician and surgeon, who was produced as a witness by respondent, and who assisted in an autopsy of the body of deceased, gave, as his opinion, based on his observations of the autopsy and the history of the case which he received from claimant and another person, that the death was due to heart disease and that there had been an acute dilatation of the heart; that "the cause of death, without doubt, was heart disease and I felt from the history that was given there was probably an acute dilatation of the heart on the basis of the diseased heart condition that existed before. . . . I am convinced the exertion was the thing that brought on the cause of death."

It appeared from the testimony of physicians and surgeons produced by appellants as witnesses that, in their opinion, based on the history of the case given by other witnesses and on the testimony of respondent's medical expert as to what he found at the autopsy, there had been no acute dilatation of the heart and that death had resulted from cerebral thrombosis--one of them stating, as his opinion, that death was caused from cerebral thrombosis or cerebral hemorrhage. The difference in opinions of medical experts sometimes has a tendency to becloud, rather than to clarify the issues in cases of this kind. It would be a blessing to some of the rest of us if the opinions of experts could be in agreement, but the hope for such a luxury would be an invitation to disappointment.

The testimony of an expert, as to his opinion, is not evidence of a fact in dispute, but is advisory, only, to assist the triers of fact to understand and apply other evidence. (Evans v. Cavanagh, 58 Idaho 324, 331, 73 P.2d 83, 85.) What was said about expert witnesses in Suren v. Sunshine Min. Co., 58 Idaho 101, 108, 70 P.2d 399, 403, applies here:

"Each testified, truthfully no doubt, as to his own opinion. This is not a dispute between witnesses as to a fact, it is a conflict of their opinions, probably growing out of differences in their experiences and educations."

The action of the board in admitting certain hearsay testimony in evidence, which was, in part, made the foundation of expert opinion as to the cause of decedent's death, is assigned as error. That evidence is to be found in the testimony of respondent and a part of it is:

"Well it was the first part of May, about the third. One night he come home and he used to come home so happy and that night he come home and he come in to dinner and he was so white, and I said 'what was the matter' and he said 'I had a funny experience. They were just through unloading some planks and I felt a strain and I couldn't do anything for a long time' and he said he tasted blood."

She further testified that her husband said, "I feel so choky and full here," indicating the chest and region of the heart. Respondent also testified with respect to her husband's appetite; that prior to May 3d, it was good "and after that he ate less and less."

Q. "About stooping. Did he stoop over?

A. "When he was going to stoop, he always let his whole body go down not to bend forward.

Q. "What was his condition from May 3 on to the time of his death with reference to walking and stooping and things of that sort?

A. "He would have to go slow about it.

Q. "How about his appetite?

A. "He took his lunch along and he never used to bring anything home but a little bit of pie for the children and then he came home with half his lunch most of the time after that.

Q. "What do you say about his general condition between the third of May and the first of June when he died?

A. "He couldn't eat what he used to and he couldn't do his work. He said he was so tired.

Mr. Nelson: "Move to strike what he said.

Mr Suppiger: "It...