Reynolds v. Rider Dairy Co.

• Decision Date: 05 April 1939
• Citation: 5 A.2d 855,125 Conn. 380
• Court: Connecticut Supreme Court
• Parties: REYNOLDS v. RIDER DAIRY CO. et al.

5 A.2d 855

125 Conn. 380

REYNOLDS v. RIDER DAIRY CO. et al.

Supreme Court of Errors of Connecticut.

April 5, 1939

Appeal from Superior Court, Fairfield County; Edward J. Quinlan Judge.

Proceeding by Rose Reynolds to recover compensation under the Workmen's Compensation Act for the death of an employee opposed by the Rider Dairy Company, employer, and another. From a judgment dismissing an appeal from a finding and award of the compensation commissioner for claimant and affirming the award, the opponents appeal.

No error.

William F. Healey, of Derby, for appellants.

Leonard McMahon and Frank J. Culhane, both of Danbury, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNING JJ.

BROWN Judge.

The claimant's decedent was in the employ and under the control and supervision of the respondent Dairy Company as operator of a retail milk delivery truck. He was thirty-one years of age and in perfect health on August 20, 1937, and had never complained of being in poor health. On the afternoon of that day after concluding his work, while driving along the highway in returning to the dairy, he fell from the truck at about 5:15 o'clock and died within a few minutes.

The decedent had been employed by the Dairy Company for eight years, and for two years prior to his death delivered milk and dairy products and made collections on a route which included Ball's Pond and Lake Candlewood in New Fairfield and the summer colonies about them. During the summer season when the summer colonies were thickly populated, the route consisted of approximately three hundred customers and was largely in a territory up and down hills. It was the decedent's custom to deliver his milk and other products first, to assure delivery before breakfast, and then to return to make collections, both retail and wholesale. The direct route was approximately thirty miles in length, a large portion of which he covered a second time.

On August 20, 1937, the decedent arrived at the dairy between 12 and 2 a. m. and with the assistance of Joseph Bates loaded his truck with approximately six hundred and fifty quarts of milk and other dairy products, and left at about 3 a. m. He then proceeded to make his deliveries and collections as usual and continuing his regular duties, delivered milk at homes and stores, had his lunch and delivered several cases of milk at Joyceland between 1 and 2 p. m., and was overheard soliciting a customer there at about 2:30 p. m. The temperature on that day ranged from 76° at 7 a. m. to 98° at 5 p. m. in the shade, and was 116° in the sun at Candlewood Isle at noon; and the humidity for this territory recorded by the Weather Bureau was 84 at 7:30 a. m., 62 at noon, and 75 at 7:30 p. m. That morning the decedent was perspiring freely. In the afternoon he was unable to perspire and he remained at the ‘ Farm House’ on Candlewood Knolls for aobut an hour while the people in charge provided hot drinks in an effort to make him do so, which was unsuccessful. He called at two other stores later and had other stops to make at Ball's Pond, before he returned home that afternoon. It was while on his way from the pond to Danbury that he died, with $90 on his person which he had collected.

The day in question was exceedingly hot. The constable in charge at Candlewood Isle was compelled to allow his men to quit at 1 p. m. because of the extreme heat. The decedent had been working approximately sixteen or eighteen hours a day for some days previous, and from 1 or 2 a. m. to the time of his death on that day, at a job which necessitated his climbing up and down hills in the excessive heat. On August 18th the temperature was 76° at 7 a. m., 82° at noon, and 94° at 6 p. m., and on August 19th it was 73° at 7 a. m., 82° at noon, and 84° > > at 6 p. m. The decedent died of a heat or sunstroke. No other sunstrokes or heat prostrations in the town of Danbury on August 20th were reported. Following his death the decedent's route was split into two routes.

The court's refusal to correct the commissioner's finding by striking out many of these facts is assigned as error. The record, however, reveals that all were supported by restimony or by reasonable inferences from the facts in evidence, which is a sufficient answer to the respondents' contention. The court's refusal to add to the finding other facts set forth in the respondents' motion is also assigned as error. By these they seek primarily to have detailed the decedent's activities on that day between noon and the time of his fatal attack, and to have set forth a discretion accorded him to determine just what collections he would make and what rest he would take en route, as bearing on whether the decedent's injury arose out of his employment. We are satisfied upon the evidence that no fact claimed under this assignment could be added which would materially affect the trial court's conclusion.

The remaining assignments of error purport to relate to the commissioner's ‘ conclusion * * * not supported by the facts found.’ Among these is mistakenly included the commissioner's finding that ‘ the decedent died of a heat or sun stroke.’ The determination of this question as to the cause of death involved the weighing of expert testimony. The record, if barren of evidence from such a source, could not support an affirmative finding upon this issue. Slimak v. Foster, 106 Conn. 366, 368, 138 A 153; O'Meara v. Columbian National Life Ins. Co., 119 Conn. 641, 645, 178 A. 357; Bates v. Carroll, ...