Pace v. North Dakota Workmen's Compensation Bureau
| Decision Date | 26 November 1924 |
| Citation | 201 N.W. 348,51 N.D. 815 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, North Dakota Moellring, J.
Affirmed.
Phillip Elliot, O. B. Herigstad, and Scott Cameron, for appellant.
The authorities seem to be uniform that where a claim is made for compensation that the burden of furnishing evidence showing that the claimant received an injury in the course of employment is thoroughly upon the claimant and that any award which is based upon mere surmise or conjecture will be set aside. 28 R. C. L. p. 812; Chicago & A. R. Co. v Industrial Bd. 274 Ill. 336.
The burden of proof, that the workman met his death out of personal injury arising out of and in the course of his employment is not sustained if an inference favorable to the applicant can be arrived at only by a death. De Mann v Hydraulic Engineering Co. 159 N.W. 380; Collins v Brooklyn Union Gas Co. 171 A.D. 381, 156 N.Y.S. 957; Schmoll v. Weisbrod & H. Brewing Co. 97 A. 723.
Propositions must be proved in a court of law by proof of evidence, and that is not satisfied by surmise, conjecture or guess. Barnabas v. Bersham Colliery Co. 3 B. W. C. C. 216.
The Workmen's Compensation Law should receive a liberal construction, but it ought not to be so construed as to take money from one person and give it to another without any basis therefor. Hanson v. Turner Constr. Co. 120 N.E. 693.
McGee & Goss, for respondent.
The findings of the trial court, are presumed to be correct, unless clearly opposed to the preponderance of the evidence. Gotchy v. Burcau; 194 N.W. 663.
It is apparent that this is not an ordinary proceeding; that the act has not specifically classified it as a civil action, although otherwise it has mentioned proceedings to be taken for enforcement of the act through civil actions. Easily might the Legislature have so prescribed, if it so desired. Accordingly we are of the opinion that this appeal is a special proceeding pursuant to the Compensation Act; that it is not triable de novo upon appeal to this court. Ibid.
This is a special proceeding, pursuant to the Compensation Act, and not triable de novo on appeal to this court. The findings of the trial court, therefore, are presumed to be correct unless clearly opposed to the preponderance of the evidence. Altman v. N.D. Bureau, 195 N.W. 288.
As to whether the compensation act should be held to contemplate injuries caused by excessive heat, cold, or other meteorological phenomena, there has been considerable controversy. . . . According to the weight of authority, compensation should be allowed where it is shown that incapacity or death has resulted from sunstroke, heat prostration, frostbite or freezing or lighting. 28 R. C. L. § 87.
This is an appeal from an order of the District Court of Ward County denying a motion for a new trial. The motion was made upon the ground that the evidence was insufficient to sustain the judgment and also upon the ground of newly discovered evidence.
The action is brought by the surviving widow of Wm. M. Pace, to recover compensation pursuant to chap. 162, Session Laws, 1919. The decedent had been employed by the Northern States Power Company at Minot for over two years prior to and up to the time of his death, on the 7th of June, 1921. The power company had complied with the compensation act and was duly insured. The duties of the decedent consisted in part in cleaning and repairing boilers in the plant of his employer at Minot, under the supervision of an engineer. Decedent was 54 years of age at the time of his death. He had been confined to his home from May 30th until the time of his death. The evidence tends to show that on May 30 or 31, the decedent came to the office of one Dr. Pence, two or three blocks from the power plant; that the petitioner accompanied the decedent to the doctor's office in a taxicab, and that the decedent had, just prior to the visit on the same day, collapsed at his place of work. On the occasion of that call his blood pressure was found to be 180 or 185 millimeters of mercury--35 or 40 above normal--and it appeared that he was then suffering from heart leakage, or, what the doctor calls, mitral regurgitation. The doctor advised the decedent to discontinue heavy work. On June 7th, following, Dr. Pence was summoned to the petitioner's home and on arriving found Pace dead. The doctor diagnosed the cause of death as "brain hemorrhage, otherwise known as apoplexy." The expert testimony is to the effect that with high blood pressure any excitement or labor may cause a blood vessel to burst in the brain. The evidence shows that the decedent, during the days intervening the 30th or 31st of May and June 7th, consulted one Dr. Newlove; that very shortly before his death decedent's blood pressure was 220, accompanied by the regurgitation of the heart, referred to by Dr. Pence. Dr. Newlove testifies that the patient was then in a dangerous condition and says he advised him to go home and not to come back to the office as it would be dangerous to walk up the stairs.
There is much testimony in the record with respect to the character of the work and the nature of the duties performed by the decedent at the power plant. The plant consisted of six boilers arranged in pairs; two of these were cleaned each week. The two that were to be cleaned were "taken off the line," that is, the fire was drawn and the ashpit, the combustion chamber, and the arches cleaned of accumulated ashes and the flues were scraped and repaired. The cleaning of the arches and the flues over the arches, it seems, exposed the workmen at times to intense heat. The workmen had to enter a manhole about 16 in. one way and about 12 in. the other way. The arch cleaned was about 5 ft. long and the cavity above the same would become covered with hot ashes which could not be reached from the outside. It seems that boards were thrown on the arches for the workmen to stand on. The testimony tends to show that the arch was too hot without the boards and that the boards would sometimes catch fire. It would take about five or six minutes to clean the ashes over the arch, but some of the witnesses testify that it was seldom possible for one man to complete the work without coming out because of the great heat. Three men did this work, it seems, by turns, the decedent and two others, by the names of Brown and Daley. There is testimony to the effect that Pace would go into the boilers when it was so hot that others would not go.
It appears that a new chief engineer came on the job in December preceding the 7th of June, when Pace died, and that this new chief engineer cut down the time of cooling one-half, with the result that the boilers were much hotter and the work more severe than before. This is denied by the engineer. One witness testifies that he came out of that place dizzy from the heat and dust. The testimony tends to show that when Pace came out of the boiler he would be wet with perspiration, would have to sit down and could do nothing for a while. One of the witnesses testified that he acquired heart trouble while doing this work and was treated by Dr. Newlove and that he left the plant because of the trouble. The testimony shows that after the death of Pace some respirators were procured for the men, with the result that the conditions under which they worked were somewhat improved.
The medical testimony is to the effect, in general, that high blood pressure is frequently found in apoplexy cases; that severe work may increase blood pressure; that excessive heat would tend to overcome one suffering from high blood pressure. One medical witness testified that in view of the fact that the decedent had been working around hot boilers for several months continuously and had to enter such boilers for a period of from one to three minutes, or as long as he could stand the heat, this work and the conditions under which the work was performed might be a contributing aggravating or exciting cause of the high blood pressure and the condition of the heart described by Dr. Pence and Dr. Newlove. In fact, this witness testifies that these conditions and the work performed by the decedent might possibly be the sole cause. Dr. Newlove testified on cross examination that a man with high blood pressure who went into hot boilers or in a place of excessive heat would be in danger of being overcome immediately and that if he were not overcome immediately it would weaken him; "it would still be a little more and a little more all the time for his resistance." Another physician, Dr. Kermott, answered a hypothetical question based on the facts, to which reference has already been made, saying that in his opinion the work described and performed by the decedent would be "contributory to the condition that caused his death, if the death was due to apoplexy." It is not disputed that death was due to apoplexy. The medical testimony shows that in all probability a man would not survive for any length of time working under the conditions described and with a blood pressure of 185 or 220. One Dr. Erenfeld testified that the labor and the heat would aggravate the condition and that hard work would be an aggravating cause of high blood pressure. This witness said: "I would say that the work under the circumstances in the case which was indicated, that it was contributory; that these things were contributory to his death. " This witness says that he has no question that the working conditions contributed to bring about the death of Pace on June 7. In the opinion of some of...
To continue reading
Request your trial