Slack v. C.L. Percival Co.
| Decision Date | 24 June 1924 |
| Docket Number | 36271 |
| Citation | 199 N.W. 323,198 Iowa 54 |
| Parties | MRS. ELLA SLACK, Administratrix, Appellant, v. C. L. PERCIVAL COMPANY et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.
THIS is an action brought under the Workmen's Compensation Act. The industrial commissioner awarded compensation. On appeal this action was reversed by the district court. The claimant prosecutes an appeal to this court.
Affirmed.
B. O Montgomery, for appellant.
Miller Kelly, Shuttleworth & McManus and H. W. Raymond, for appellees.
I.
The original claimant was the widow of the deceased employee, Joslin. Her administratrix has been substituted as claimant in this action.
The hearing on review before the industrial commissioner was had on April 28, 1922, and the decision of the industrial commissioner was rendered May 4, 1922. An appeal was taken to the district court, and the cause was heard in the district court on the 24th of August, 1922. The original claimant died November 1, 1922. The decree of the district court reversing the decision of the industrial commissioner was not entered until September 14, 1923. The administratrix of the estate of the claimant was appointed January 22, 1924, and on said day was authorized to appeal said cause to this court; and on January 28, 1924, an order was entered in said court substituting the administratrix of the estate of the claimant as a party plaintiff.
It is argued by appellee that the right of the surviving spouse to compensation is not a vested right, and did not pass to the administratrix. This question is presented to us only in the brief of appellee.
The cause was submitted to the trial court on August 24, 1922, and was not decided until some thirteen months later. There is a statement in the abstract that the original claimant died in November, 1922. This was some ten months before the decree was entered in the district court. The administratrix, however, was not appointed until January 22, 1924, and the order substituting the administratrix as plaintiff was entered on January 28, 1924, and the appeal was taken thereafter. Nothing further has been done in the matter.
In this state of the record, we cannot consider the question presented by appellee solely in the brief filed in this court. We therefore make no pronouncement on this question. Under Code Section 4151, and Rule 41 of this court, where appellant has no right, or no further right, to prosecute the appeal, appellee may move to dismiss it. No such motion has been made. We must consider the case upon the record presented in the court below. As bearing on the question, see, however, Sider v. General Elec. Co., 238 N.Y. 64 (143 N.E. 792); Smith v. City of Bluffton, (Ind. App.) 141 N.E. 532.
II. The workman was a man about forty-five years of age, and was employed as a painter and paper hanger, and also did work as a common laborer. He was a man weighing about 170 to 185 pounds. On January 21, 1921, while in the employ of appellee Percival Company, he fell a distance of twelve or fifteen feet into an elevator pit, and landed on the cement floor. He received a fracture of the femur and also of the ulna. Both fractures were treated at a hospital for about two months, and the workman recovered sufficiently therefrom to leave the hospital, and was removed to his home, but did not engage in work again. About the middle of July, 1921, he consulted a physician in regard to stomach trouble. A consultation of physicians resulted in a diagnosis of cancer of the stomach. He died August 5, 1921, and a post-mortem examination disclosed that he was suffering with a carcinoma, sometimes called "leather bottle cancer." The post-mortem also disclosed old scars of an attack of peritonitis, and some tying together of the intestines.
The question for determination upon this appeal is whether the record shows that the death of the deceased employee resulted from an injury arising out of and in the course of his employment. The undisputed evidence shows that the death resulted solely from the cancer; and the ultimate question involved in the case is whether, under the disclosed facts, this cancer was either caused by the injury or was so accelerated thereby that it hastened the death of the employee.
It is contended that there is no substantial conflict in the evidence upon the question of the cause of the death of the employee, and that the finding of the industrial commissioner is contrary to the evidence on the question as to whether or not the injury either caused or contributed to the death of the employee.
The evidence bearing on this question is, of necessity, furnished by medical experts. It is well known that the disease of cancer has baffled the best efforts of the medical profession, to a large extent. The latest modern science has been unable to definitely and accurately ascertain the cause of this dread disease; and it appears that medical science has discovered no known method of staying its ravages, except by a surgical operation, or by the use of radium or X-ray. There is no method of checking the progress of the disease by the use of medicine; and cancer of the character of the one with which the employee in this case was affected is progressive in its development, and invariably and inevitably results fatally.
There is evidence in the case tending to show that it is believed in medical circles that cancer may in some instances result from a traumatic injury, such as a blow; but this is not at all a matter of certainty, but rather of conjecture and surmise on the part of men of medical science.
If it should be conceded that there is opinion evidence in the case to the effect that a cancer of the character of the one in question might have resulted from a traumatic injury, still the evidence in this case fails to show that the employee received any such an injury in the location of the cancer as might have caused its development. Under the record, it must be held that there is no evidence to warrant a conclusion that the injury to the workman was the cause of the cancer which resulted in his death.
Furthermore, it is quite satisfactorily established from the record that the cancer which caused the death of the employee in August, 1921, must have been in existence, and in an incipient state at least, for some time before the date of the injury to the employee. So that the question of fact narrows itself somewhat to the proposition as to whether or not the injury to the employee accelerated or whipped up the growth and development of the pre-existing cancer, so that it can be said that it hastened the death of the employee.
We are cited to a number of cases where, under statutes similar to ours, it has been held that, where the injury accelerated a pre-existing disease with which a workman has been afflicted, and thereby hastens his death, it furnishes a case for compensation under the statute. Such may be conceded to be the rule recognized by persuasive authority. Authorities recognizing such rule as applied to other diseases than cancer, which are not necessarily fatal, are of little value, however, in determining the question before us. We are confronted with the question of fact as to whether or not, assuming that the workman was afflicted with carcinoma at the time of his fall down the elevator shaft, with the resultant injuries that followed therefrom, it can be said that such injury accelerated the development and growth of the cancer with which the workman was afflicted, and thereby hastened his death from such malady.
The fall of the workman resulted in severe physical injury, in the breaking of bones, in severe shock and prostration, and a necessary loss of physical vitality. It might well have rendered him more susceptible to the inroads of communicable diseases than he otherwise would have been. Undoubtedly, immediately following the injury his powers of resistance were lessened. But the question is whether or not the injury and the general physical condition resulting therefrom accelerated the ravages of the existing carcinoma toward its inevitable end.
One of the medical experts testified that, in so far as the injury would lower a person's vitality, it would hasten the development of the cancer. Another expert testified:
Another expert said:
"My personal opinion is that it was hastened--the least I could say--that it was hastened in...
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