PACIFIC EMPLOYERS'INS. CO. v. Pillsbury

• Decision Date: 07 September 1932
• Docket Number: No. 6794.,6794.
• Citation: 61 F.2d 101
• Parties: PACIFIC EMPLOYERS' INS. CO. et al. v. PILLSBURY, Deputy Compensation Com'r, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

61 F.2d 101 (1932)

PACIFIC EMPLOYERS' INS. CO. et al. v. PILLSBURY, Deputy Compensation Com'r, et al.

No. 6794.

Circuit Court of Appeals, Ninth Circuit.

September 7, 1932.

W. N. Mullen, of San Francisco, Cal., for appellants.

Geo. J. Hatfield, U. S. Atty., and Leo C. Dunnell, Asst. U. S. Atty., both of San Francisco, Cal., for appellee Pillsbury.

Charles P. Knights, of San Francisco, Cal., for appellee Hansen.

Before WILBUR, Circuit Judge, and JAMES and NORCROSS, District Judges.

JAMES, District Judge.

The husband of appellee Margaret T. Hansen, while working as a stevedore for the Western Terminal Company, became ill and died two days thereafter. The deputy commissioner, under the provisions of the Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 902 et seq.), made an award of compensation to the widow dependent. Thereupon appellants' employer and insurance carrier brought their proceedings in the District Court, seeking to have enforcement of the award restrained. The record of the proceedings had before the deputy commissioner were filed with the complaint in the District Court. A motion to dismiss for insufficient cause shown was granted, and from that judgment appeal was taken which has brought the case here.

No point is made by appellants respecting the fact or the maritime nature of the employment of Hansen, and no defect in the form of the proceedings as brought to review the award is suggested by appellees.

Appellants, in brief, insist, first, that the work engaged in by Hansen was not the cause which brought on his fatal illness; second, that the alleged injury suffered by Hansen was not one included in the definition of the statute which makes compensable "accidental injury or death arising out of and in the course of employment" (33 USCA § 902, subdiv. 2); third, that, assuming that a compensable case was made out, the deputy commissioner allowed the widow costs of burial without any proof before him that such costs were incurred or paid.

Considering the case presented, it need scarcely be stated that in deciding questions of fact the deputy commissioner acted with authority to make a final judgment. Conflict in testimony must here be disregarded; preponderating weight may not be measured. The court may only inquire whether an essential matter of fact has been found without supporting evidence. Crowell v. Benson, 285 U. S. 22, 52 S. Ct. 285, 76 L. Ed. 598.

Hansen, the employee, had been engaged for fifteen years or more as a stevedore. He was 52 years of age at the time of his death. He was not shown to have had any serious illness for many years prior to receiving the alleged injury. On the 8th of October, 1930, he was employed by appellant Western Terminal Company to assist in the discharging and loading of cargo on a ship at the dock. On October 11th he was at work with the other stevedores stowing cargo. A portion of the cargo being handled was case goods weighing about fifty pounds per case. Customarily two cases were lifted by a single stevedore. There were also sacks of seed to be stowed, each weighing in excess of two hundred pounds, and these were stacked to the beams about six feet above the floor of the hold. The stevedore foreman characterized this as very heavy work, as the sacks of seed had to be lifted above the men's heads. However, four men were used to stack the sacks, at least those that went above head height. Hansen went to supper at 5 o'clock on the day in question, and when he came back the foreman noticed that there was something the matter with him as he was stooped over and holding his hand to his chest. Hansen told the foreman that he felt bad and hurt inside. He said "that something must have pulled loose inside of me." He had intended to work on the overtime shift during the night. The foreman told him that he had better see a doctor, and the man went home. A fellow employee who was working with Hansen had noted at 5 o'clock that Hansen appeared to be ill; that his face was "ashen color." Hansen said to this man that "he felt something burst inside while he was down below"; that he had felt that about a half hour before dinner time, and had stopped work and sat down for a few minutes. Hansen later in the evening applied to a neighbor, asking that an ambulance be called. He was taken to a hospital, and there died on October 13th. The autopsy showed he had suffered a pneumothorax. The left lung was found in a completely collapsed condition. The pleural cavity was filled with fluid. No tearing of the lung tissue or covering was found, but the autopsy physician testified that the fluid content of the cavity was foul, which indicated to him that there had been a previously diseased condition. There was some medical testimony to the effect that due to the diseased condition the collapsing of the lung might have occurred at any time, regardless of any physical effort being made by the man. There was other medical testimony which attributed the heavy labor as the immediate cause of the collapse.

The argument of appellants that there was no "accident injury" shown, is proposed under two assumptions — one, that to be compensable the injury must be shown to be the result of external violence; two, that pre-existing disease contributing to produce bodily damage, which would likely not have resulted except for such disease, makes inapplicable the statute provision. Neither assumption is tenable under the law as it is settled by the decisions construing acts of the kind considered. Cases which appellants cite are in their greater number those where accident insurance policies were construed. Such policies, issued usually upon moderate premium charges, expressly limit the cause of injury to external violence, and exclude from their benefits cases where disease has contributed to the harmful results. A different rule, one required by express contract terms, applies in such cases. Furthermore, that a liberal interpretation is to be given industrial compensation acts, the authorities are in practical agreement, this because of the humane considerations which have influenced the passing of such laws. The policy of the legislation is to the end that industries shall bear the burden of contributing to the disabled who are hurt...