Patrick v. Smith Baking Co.

• Decision Date: 28 September 1942
• Docket Number: 7039
• Citation: 64 Idaho 190,129 P.2d 651
• Parties: FRANK PATRICK, IDAHO FALLS POTATO GROWERS ASSOCIATION, and STATE INSURANCE FUND, Surety, Respondents, v. SMITH BAKING COMPANY and IDAHO COMPENSATION COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

129 P.2d 651

64 Idaho 190

FRANK PATRICK, IDAHO FALLS POTATO GROWERS ASSOCIATION, and STATE INSURANCE FUND, Surety, Respondents, v. SMITH BAKING COMPANY and IDAHO COMPENSATION COMPANY, Surety, Appellants

No. 7039

Supreme Court of Idaho

September 28, 1942

WORKMEN'S COMPENSATION-RECURRENCE OF PRIOR INJURY-INDUSTRIAL ACCIDENT BOARD-PROCEEDINGS-REVIEW.

1. Under the liberal practice that should be pursued by Industrial Accident Board, employer and its surety should have been permitted to cross-examine workmen's compensation claimant and physician testifying in claimant's behalf with regard to claimant's previous condition, although such condition was not inquired into on direct examination. (I.C.A., sec. 43-901, et seq.)

2. In compensation proceeding, where in employer and its surety contended injury complained of was a recurrence of prior injury for which another employer and its surety were liable prejudice did not result from Industrial Board's refusal to permit cross-examination of claimant and physician testifying in claimant's behalf with regard to claimant's condition prior to injury complained of, where claimant and physician were subsequently called as witnesses by employer and its surety, and examined at length concerning the first injury. (I.C.A., sec. 43-901, et seq.)

3. The mere showing of abstract error, if any, does not constitute "prejudice."

4. Error is never presumed on appeal, but appellants have the burden of showing error affirmatively.

Appeal from the Industrial Accident Board of the State of Idaho.

Proceeding under the Workmen's Compensation Act by Frank Patrick claimant, opposed by Smith Baking Company, employer, and Idaho Compensation Company, surety. From an order awarding compensation, employer and its surety appeal. Affirmed.

Order affirmed, with costs to respondents.

Spencer Nelson and Ralph S. Nelson for appellants.

When a person has a recurrence of a condition in a knee the question of whether or not the employer at the time of the original injury or the employer at the time of the second injury is responsible for additional compensation becomes one of proximate cause, and if the condition of the knee was such that the proximate cause of the injury was the first accident, then the employer at the time of the first accident is liable for the additional compensation. (New York Indemnity Company v. Miller, 22 P.2d 107; Tippett and Bond v. Moore, 31 P.2d 583; Deep Rock Oil Corporation v. Betchan, 35 P.2d 905.)

In the trial of a case as to the question of whether or not claimant's disability is due to the first or second injury, the burden of proof is not necessarily on the employer at the time of the second injury to show that claimant's condition was due to the first injury. Appellants should be allowed to cross examine claimant and his witnesses regarding the condition of the leg at the time of the first injury without making claimant and his witnesses those of appellants. (43-1407, I.C.A.; Walker v Hyde, 43 Idaho 625, 253 P. 1104; Croy v McFarland-Brown Lumber Company, 51 Idaho 32, 1 P.2d 189.)

J. H. Anderson for respondent, Frank Patrick.

Frank L. Benson for respondents, Idaho Falls Potato Growers Association and State Insurance Fund.

The Industrial Accident Board of the State of Idaho is a judicial body exercising judicial function, and its decisions and awards are subject to those general legal principles which circumscribe and regulate the judgments of all judicial tribunals. (U. S. Const., Amends. IV and XIV, sec. 1; Const., I, sec. 13; I.C.A., sec. 43-1404; Cook v. Massey, 38 Idaho 264, 220 P. 1088.)

A party may not inquire into matters on cross examination not brought out on direct examination. (State v. Smailes, 51 Idaho 321, 5 P.2d 540.)

Whether disability (1) results from a prior injury, (2) is an aggravation of a prior injury, or (3) is caused by a new and independent injury, is a question of fact for determination by the Industrial Accident Board. (Taylor v. Federal M. & S. Co., 59 Idaho 183, 81 P.2d 728; Limited Mut. Comp. Ins. Co. v. Ind. Acc. Com'n, (Cal) 98 P.2d 827.)

HOLDEN, J. Givens, C. J., Morgan and Ailshie, JJ., concur. BUDGE, J., concurring in part and dissenting in part.

OPINION

HOLDEN, J.

December 5, 1939, claimant Frank Patrick was employed at Idaho Falls, Idaho, by the Idaho Falls Potato Growers Association. On that day he sustained a personal injury by accident arising out of and in the course of his employment, the injury being caused by claimant's slipping against the corner of a potato sorter and bumping his right Knee. At the time claimant sustained such injury, the State Insurance Fund was surety for his employer, the Idaho Falls Potato Growers Association. Thereafter claimant was hospitalized. December 8, 1939, claimant filed notice of injury and claim for compensation. Later, June 19, 1941, claimant and his employer, Idaho Falls Potato Growers Association, entered into a compensation agreement. July 10, 1941, the compensation agreement was approved by the Industrial Accident Board. Under the terms of the compensation agreement claimant was awarded "permanent partial disability consisting of loss in function in right knee equal and comparable to 40 per cent compared to amputation of leg at knee joint." March 31, 1941, claimant was surgically healed, according to the findings of the board. On the 9th day of October following, claimant was in the employ of appellant, Smith Baking Company, at Blackfoot, Idaho, as a motor truck driver delivering bakery products. On that date claimant slipped from the back door of the truck and struck his right knee on the rear bumper, thereby injuring his knee. At that time appellant, Idaho Compensation Company, was surety for claimant's then employer, appellant, Smith Baking Company. Thereafter claimant filed notice of injury and claim for compensation against the Smith Baking Company and its surety, Idaho Compensation Company. The Smith Baking Company petitioned the Industrial Accident Board for an order that Idaho Falls Potato Growers Association and the State Insurance Fund be made parties defendant in the proceeding. The petition was granted and an order entered making them defendants. Later, to wit, April 3, 1942, the Smith Baking Company and the Idaho Compensation Company, its surety, filed an answer to claimant's "Petition for Hearing", and as an affirmative defense alleged:

"That any injury or disability suffered by Frank Patrick is a result of an injury of December 5, 1939, sustained while the claimant, Frank Patrick, was in the employ of the Idaho Falls Potato Growers Association, at that time duly covered under the Idaho Compensation Act by the State Insurance Fund of Idaho."

The controversy was heard before the board April 8, 1942. April 29, 1942, Findings of Fact and Rulings of Law were made and filed, and the following award entered thereon:

"WHEREFORE IT IS ORDERED AND THIS DOES ORDER That Frank Patrick, claimant, be, and hereby is awarded against the defendants, Smith Baking Company, employer, and Idaho Compensation Company, its surety, the sum of $ 273.27 as compensation for total temporary disability for work."

* * * *

"IT IS FURTHER ORDERED AND THIS DOES ORDER That Frank Patrick, claimant herein, take nothing by these proceedings against the defendants Idaho Falls Potato Growers Association, employer, and State Insurance Fund, its surety, or either of them."

The appeal to this court is from the Order of the Board awarding claimant compensation against appellant, Smith Baking Company and its surety, the Idaho Compensation Company.

It is the view of appellants that:

"The main issue in the case is which of two insurance companies is liable to the claimant for the additional compensation." And, as to that: "It is these appellants' contention that when a claimant has a latent, low-grade infection resulting from a first injury which had disabled him for over a year and when he has returned to work only seven weeks, obviously much handicapped by the condition of his knee, that a slight blow, twist or jar causing a recurrence of the former condition is not the proximate cause of claimant's disability; that the employer responsible for the original injury and the weakened condition of the leg together with the latent low-grade infection, which will necessarily be aggravated by any slight jar, is the one responsible."

In his "Petition for Hearing" claimant alleged:

"That on the 9th day of October, 1941, Frank Patrick received a personal injury caused by an accident arising out of and in the course of his employment with the above named employer, Smith Baking Company."

Appellants answered:

"Defendants deny that on the 9th day of October, 1941, Frank Patrick received a personal injury caused by an accident arising out of and in the course of his employment with the above-named employer, Smith Baking Company."

By way of an affirmative defense appellants, as hereinbefore stated, alleged:

"That any injury or disability suffered by Frank Patrick is a result of an injury of December 5, 1939, sustained while the claimant, Frank Patrick, was in the employ of the Idaho Falls Potato Growers Association, at that time duly covered under the Idaho Compensation Act by the State Insurance Fund of Idaho."

The board found against appellants on the issues so formed and presented to it by the pleadings, upon ample, competent substantial evidence and awarded compensation against appellants, holding that appellants, Smith Baking Company, and its surety, the Idaho Compensation Company, were liable to claimant for the payment of compensation, but that the Idaho Falls Potato Growers Association and its surety were not liable, in that the board held that "claimant herein take nothing...