Oviatt v. Oviatt Dairy, Inc., 10007

CourtSupreme Court of South Dakota
Citation80 S.D. 83,119 N.W.2d 649
Docket NumberNo. 10007,10007
PartiesMargaret M. OVIATT, Widow of Max D. Oviatt, Deceased, Claimant and Respondent, v. OVIATT DAIRY, INC., Employer, and Allied Mutual Casualty Co., Insurer, Appellants.
Decision Date15 February 1963

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for employer-insurer and appellants.

Laucks, Oviatt & Bradshaw, Watertown, Royhl, Benson & Beach, Huron, for claimant and respondent.


This is a Workmen's Compensation case. Margaret M. Oviatt, widow of Max D. Oviatt, claims death benefits. The Industrial Commissioner denied an award. The circuit court reversed the commissioner and directed the entry of an award of compensation. The employer-insurer appeal.

By proper assignments the single question for review is whether or not the decision of the industrial commissioner is reasonable and supported by credible evidence. Both sides recognize that if the findings of fact of the commissioner are supported by substantial, credible, and reasonable evidence, then such findings must be sustained. Edge v. City of Pierre, 59 S.D. 193, 239 N.W. 191; Lang v. Jordan Stone Co., 61 S.D. 330, 249 N.W. 314; Wieber v. England, 52 S.D. 72, 216 N.W. 850.

It is settled law in this state that disease, or the aggravation of an existing disease, is compensable, but that such disease or aggravation must be assignable to a definite time, place and circumstance, Tennis v. City of Sturgis, 75 S.D. 17, 58 N.W.2d 301, and that the disease, or aggravation of such disease, must result from unusual exertion. Hanzlik v. Interstate Power Co., 67 S.D. 128, 298 N.W. 589; Campbell v. City of Chamberlain, 78 S.D. 245, 100 N.W.2d 707.

A recognized purpose of the Workmen's Compensation Law is to transfer from the worker to the employer, and ultimately to the public, a greater portion of the economic loss due to industrial accidents and injuries and is remedial in character and entitled to a liberal construction. Meyer v. Roettele, 64 S.D. 36, 264 N.W. 191; Schwan v. Premack, 70 S.D. 371, 17 N.W.2d 911; Bergren v. S. E. Gustafson Construction Co., 75 S.D. 497, 68 N.W.2d 477.

With these basic principles in mind, we examine the evidence presented to the commissioner.

Max D. Oviatt was 36 years of age at the time of his death, married and the father of five minor children. He was employed by Oviatt Dairy, Inc., in a managerial and supervisory capacity and spent most of his time promoting sales. During the week prior to his death, which occurred on January 18, 1959 (Sunday) he spent the first three days at Aberdeen at his usual duties returning to Huron, the base of operations, on Wednesday evening, January 14. About 10:30 p. m. that evening he received a telephone call that one of his route men at Aberdeen had an emergency appendectomy. Oviatt got up about 4 a. m. Thursday, drove to Aberdeen, and took over the route for Thursday and Friday. He was assisted by Mrs. Bacon, wife of the route man, who had lived at Aberdeen most of her life and had some familiarity with streets and addresses, but who had never been over the route before.

The milk truck had been loaded the night before and Oviatt and Mrs. Bacon started on the route about 7:30 a. m. The temperature was between six above and five below zero that day and the wind velocity 15 to 20 miles per hour. The ground and walks were icy and slippery, covered by a small quantity of snow. The route covered an area where college students and others lived in a trailer court and in huts and was poorly marked. Some customers lived in second and third floor apartments. There were about 135 customers on the Thursday route. Deliveries consisted of dairy products in various amounts to the different customers, with the largest being one-half gallons, and the carrier load having a maximum weight of about 60 to 65 pounds, depending on what was in the load. Because of unfamiliarity with the route and the demands of the customers, many extra trips were necessary. The normal time spent on a route was about 5 hours. Oviatt covered the route in about 10 hours. Virtually all deliveries were made by him with a few being made by Mrs. Bacon. After completion of the route on Thursday Oviatt did the necessary bookwork on the operation and with the help of another man unloaded the empty cases, and reloaded the truck for the next day's operation.

Mrs. Bacon testified that Oviatt was jovial and full of energy when they started, but as the day progressed he tired, became quiet and was exhausted at the end of the day's work. He had difficulty opening the truck door. Oviatt called on Darrel Bacon at the hospital Thursday night and Bacon described him as 'pretty well bushed'. Oviatt spent the night in Aberdeen and telephoned his wife at Huron about 10:30 p. m. and told her 'he was never so tired in his life'.

On Friday, Oviatt and Mrs. Bacon again worked her husband's route, which covered a different area but had about the same number of customers and they experienced the same difficulties making deliveries. They started on the route at about 7 a. m. and finished at about 5:30 to 6 p. m. after which he again did the bookwork, unloaded the empties and loaded the truck for Saturday morning. Mrs. Bacon said he was 'completely exhausted'. On Friday he complained about his leg,--'it seems to be kind of numb', and about being too weak to open the truck door. Weather conditions were substantially the same on Friday, except somewhat colder with temperatures varying from zero to minus twelve degrees. Irvin Hatlestad, a fellow employee at Aberdeen, saw Oviatt on both Thursday and Friday when he returned from the milk routes and described him on Friday night as 'really tired' and in attempting to prevail on him to stay in Aberdeen and not return to Huron that evening, he said 'Max, do you think you can make it? You are pretty nearly played out.' He returned to Huron about 10:25 p. m. Friday and went to bed about 11 p. m. He was restless, pale, walked real slowly, felt clammy, complained of being cold, and perspired profusely. He complained about pain in his foot and his wife rubbed his foot and legs for about fifteen minutes. He got up about 8:30 a. m. Saturday morning contrary to his usual custom of rising at about 7 a. m. He looked tired, pale, and walked slowly, leaving for work about 9 a. m. He was late for lunch and went to bed about 1 p. m. and Mrs. Oviatt awakened him about 3 p. m. from a sound sleep. He got up slowly. That evening the Oviatts visited relatives near Huron from about 9 to 11:30 p. m. and he acted and looked very tired, contrary to his usual energetic self. They got home about midnight and Mrs. Oviatt rubbed his foot and legs for about five to ten minutes. He looked tired, pale, and moved very slowly, and looked about the same as the previous evening.

The industrial commissioner, based on the evidence related, found that the work Oviatt performed on Thursday and Friday under the then existing conditions required unusual exertion.

Sunday morning, January 18, Oviatt wakened his wife about 7 a. m. and said 'I am ill' and 'I have a terrible pain and I feel sick to my stomach and I am dizzy' and asked her to call a doctor. He was sweating profusely and terribly cold. Oviatt died about 8 a. m. shortly after the doctor arrived.

Dr. Carefoot, pathologist, performed an autopsy the next day and the autopsy report was received in evidence. The pertinent parts of such report are quoted:

'* * * The coronary arteries show a moderate to marked atherosclerosis particularly of the anterior descending branch of the left coronary artery and of the circumflex branch of the left coronary artery, both showing extreme narrowing just beyond their origin. The lumen in the anterior descending branch is almost microscopic in size. There is a red clot in the distal portion of the narrowed area of the anterior descending branch approximately 3 cm. from the bifurcation. The narrowed area of the anterior descending branch of the left coronary artery is approximately 3 cm. in length. * * *'

The report summarized:

'This is a case of death due to acute coronary thrombosis. The findings indicate that the changes in the coronary arteries were long standing. The changes in the lungs and liver, especially the lungs indicate that some cardiac decompensation was present before the final episode of thrombosis.'

Atherosclerosis is a form of arteriosclerosis where the blood vessels are reduced in their capacity to carry blood by reason of a deposit of fatty substances in the intima or inner lining and is a disease of the intima in which the fatty deposits impinge on the lumen (opening) of the artery and reduce the space through which the blood flows. From continued growth of these atherosclerotic plaques (deposits) there may be a complete occlusion or closing of the vessel. 2 Proof of Facts, p. 41.

The evidence is undisputed that Oviatt had no prior knowledge that he was affected with a cardio-vascular disease and that about a year before his death had successfully passed a physical examination on application for life insurance. He was described by lay witnesses and the family doctor as an energetic, jovial person and 'a picture of good health'. Death certificates of his parents were offered and received in evidence over objection. They show that his father died at the age of 55 years and 6 months of an acute coronary occlusion, and his mother died at an age of 60 years of a cerebral accident.

Three medical witnesses testified before the commissioner; two called by plaintiff and one by defendants. Dr. Saxton, the family doctor, testified to a life-time acquaintance, personal and professional, with Oviatt. He disclaimed being a heart specialist, but personally had two heart attacks and had read extensively on the subject, and testified that excessive physical exertion and work in cold weather are detrimental to heart patients. In response to a hypothetical question he...

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