Patrick v. J. B. Ham Co.

• Decision Date: 18 January 1921
• Citation: 111 A. 912
• Parties: PATRICK v. J. B. HAM CO. et al.
• Court: Maine Supreme Court

111 A. 912

PATRICK

v. J. B. HAM CO. et al.

Supreme Judicial Court of Maine.

Jan. 18, 1921.

Philbrook, J., and Cornish, C. J., and Spear, J., dissenting.

Appeal from Supreme Judicial Court, Androscoggin County, in Equity.

Claim under the Workmen's Compensation Act by Elizabeth Patrick against the J. B. Ham Company, employer, and the Royal Indemnity Company, insurance carrier, for compensation for the death of claimant's husband. From a decision of the chairman of the Industrial Accident Commission awarding compensation, the employer and insurance carrier appeal. Appeal dismissed and decree affirmed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

Leon V. Walker, of Portland, for appellants.

McGillicudy & Morey, of Lewiston, for appellee.

HANSON, J. This is an appeal by J. B. Ham Company, an employer, and Royal Indemnity Company, its insurance carrier, from a decision of the chairman of the Industrial Accident Commission ordering them to pay to Elizabeth Patrick, dependent widow of Joseph Patrick, a deceased employee of said J. B. Ham Company, weekly compensation of $11.80 to the maximum sum of $3,500 provided for by the Workmen's Compensation Act (Rev. St. c. 50).

The facts found by the Industrial Commission were as follows:

On October 13, 1919, Joseph Patrick was an employee of the J. B. Ham Company, grain dealers of Lewiston, Me. The J. B. Ham Company were assenting employers under the terms of the Workmen's Compensation Act.

On the date of the alleged injury Mr. Patrick was engaged in loading a car of grain at the place of business of the J. B. Ham Company. The grain was in bags containing 100 pounds each and consisted of corn and mixed grain. The grain was being wheeled into a car on small trucks, two bags at a time. Mr. Patrick had charge of loading the car, and remained in the car. Other employees were trucking the bags into the cars. As the bags were trucked into the car they would be wheeled to the front of the pile in such a manner as to place the bags to be unloaded from the truck parallel with those already placed in the car; the man who had wheeled the bags in would set the truck down and take one end of the bag while Mr. Patrick, while standing at the front end of the truck, would take the other end of the bag, and the two would swing the bag onto the pile. As the bags were piled up the height would vary according to the number placed in the car.

Mr. Patrick was engaged in this kind of work all the morning of October 13th. He went home to his dinner, as usual, at noon and returned, as usual, at 1 o'clock ready to continue his work. As the work commenced in the afternoon, a Mr. Bailey, who was one of those wheeling the grain into the car, asked Mr. Patrick if he was ready for some corn and Mr. Patrick, said, "Bring it in." Mr. Bailey brought in a load of two bags and together with the help of Mr. Patrick started to place the bags on the pile, one at a time, in the usual way. Mr. Bailey testified that the pile, at that time, was about three feet high where the bags were to be placed.

Mr. Patrick stooped to pick up his end of the bag and as he threw it onto the pile Mr. Bailey said he noticed Mr. Patrick lurched a little. However, they put the bag in place and both stooped and picked up the second bag and placed it on the pile. Again Mr. Bailey says he noticed that Mr. Patrick lurched a little as he swung the bag up.

Mr. Bailey then went after another load of grain and returned with it. Again Mr. Patrick stooped to pick up his end of a bag, but tills time he fell across the bag and could not lift it. Mr. Bailey then saw there was something wrong with Mr. Patrick and he called some other men, who together with Mr. Bailey, assisted Mr. Patrick to walk out of the car into the storeroom. Mr. Patrick soon became unconscious; he was sent at once to a hospital, where he died about 10 o'clock that night without regaining consciousness. The cause of the death, as testified by two physicians, was cerebral hemorrhage.

No question is raised as to dependency, and the chairman found that Elizabeth Patrick was dependent, as defined by subdivision (a), paragraph 8, section 1, of the Workmen's Compensation Act, upon Joseph Patrick at the date of his death. And basing his decision upon the foregoing facts, and upon the testimony of the two physicians testifying in the case, the chairman further found that—

"In view of these two opinions, expressed by the two physicians who saw and attended Mr. Patrick, and the further evidence that Mr. Patrick had resumed his work for the afternoon in apparently his usual health and was actually engaged in that work at the time the fatal hemorrhage first appeared, and in view of the entire lack of evidence of any other possible cause of the hemorrhage, the chairman finds that Mr. Patrick's death was due to a personal injury by accident arising out of and in the course of his employment."

The decree followed, and it is the opinion of the court that there was evidence upon which the decree of the commission can rest.

Counsel for appellant contends that the chairman not only misapprehended the evidence on various vital points, but that he, in effect, placed the burden of proof, not upon the claimant, but upon the respondents.

As to the first contention, the appellant's counsel strenuously urges that the testimony of Mr. Bailey is inconsistent with an affidavit previously made, which affidavit was written by counsel himself, and, after cross-examining Mr. Bailey in detail as to his statements, introduced the affidavit.

The chief contention was over the circumstances attending the piling of the first and second bags. There is variation between the affidavit and the testimony before the commission, as there always is when months intervene, but the variation is not such as to discredit the testimony of Mr. Bailey, and it can be reconciled easily with the petitioner's theory when the whole record is taken into consideration. It may be said that appellant does not challenge the Integrity of the witness, nor do we find that his close cross-examination destroys the value of his testimony because of its inconsistency. Counsel's theory is that Patrick was stricken before he lifted at all on either of the bags, and he claims that Bailey's testimony supports his theory; but, it is found that, after confronting him with his former statement as to Patrick's position on the arrival of the first two bags, Bailey does not support his claim. The record has it:

"Q. Now, Mr. Bailey, don't you recall that at the time you stated that 'When he stooped for the first bag, I noticed him lurch forward against the bag before he lifted it?' A. I do; yes, sir.

"Q. And then that you said, 'That is strange; he was a strong man and usually threw a bag of grain easily enough.' A. I did.

"Q. You made that statement? A. I made that statement. He lurched every time against the bag when he lifted it, but he lifted the two bags."

It is evident that the predisposing cause of Patrick's death operated in a very few minutes, and possibly within less time than a minute. The mere act of piling two bags would not consume a minute. It is argued that at 1 o'clock Mr. Eobitaille, who was employed in the car pulling nails from the inside of the car, tried to talk with Patrick, who was then "looking at his tally slip which was nailed to the side of the ear," and receiving no response to his remarks ceased speaking, and continued his work. It is argued from this occurrence that Patrick was then affected by the attack of cerebral hernorrhage which caused his death. But it appears that George M. Bailey, another employee, and the witness whose testimony reveals all the important facts and circumstances in the case, entered the car at five minutes after 1 o'clock and asked Mr. Patrick if he could take some corn in the south end of the car, and Patrick said, "Yes; bring it in." A man stricken with cerebral hemorrhage would not be likely to answer so promptly. Immediately after this, Mr. Bailey brought in the first truckload of two bags and proceeded to unload the same with Patrick's help. In the act of jointly lifting and piling the two bags the cause of Mr. Patrick's death occurred, whether from accident arising out of and in the course of his employment, or from natural causes. It necessarily happened then. This is made certain by the testimony that Bailey, returning for another load, said to another workman, "Joe has had a shock;" and on returning Bailey found Patrick standing "where he had left him," and "Patrick reached down to take hold and lurched over again, smiled, and drool was running out of his mouth." He did not lift on the second truckload, but turned and tried to "hold himself to the side of the car." That Mr. Patrick was stricken while in the course of his employment is not disputed. That he was a man of middle age, of good habits and regular life, and in the same employment for many years, appears in the record.

Upon the second contention counsel urges that—

"The decision of the commission throws the burden of proof upon the respondents instead of upon claimant."

In his decision the chairman says:

"The only question raised in this case, therefore, is whether the final cause of the cerebral hemorrhage was a natural one or an act of Mr. Patrick while in the course of his employment.

"No evidence was produced at the hearing of any cause to which the hemorrhage could possibly be attributed, except the employment in which Mr. Patrick was engaged."

And again he says:

"In view of the entire lack of evidence of any other possible cause of the hemorrhage, the chairman finds that Mr. Patrick's death was due to a personal injury by accident arising out of * * * the employment."

As to this contention, we do not perceive that the record supports the same, or that the language used by the chairman can be held to have any such import as claimed by appellant....