Sparks v. Consolidated Indiana Coal Co.
| Decision Date | 21 November 1922 |
| Docket Number | 34938 |
| Citation | 190 N.W. 593,195 Iowa 334 |
| Parties | LAURA MAE SPARKS, Appellee, v. CONSOLIDATED INDIANA COAL COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 17, 1923.
Appeal from Marion District Court.--H. S. DUGAN, Judge.
ACTION for an award of compensation under the Workmen's Compensation Act. The committee of arbitration, the industrial commissioner, and the district court allowed the award. The employer appeals.
Reversed.
Sargent Gamble & Read, for appellant.
N. D Shinn, for appellee.
FAVILLE, J. PRESTON, ARTHUR, and DE GRAFF, JJ., concur.
The claim for award is made by the widow of the employee. The workman was a coal miner, 48 years of age, and had a wife and five children. On the day of the injury, he was working in the mine in the same room with his son, 19 years of age. There was nothing out of the ordinary in regard to his health and physical condition on the day of the injury. He had made no complaints. The decedent operated a drill by hand power. It consisted of a straight rod, with a crank on the side, which was turned by the operator. The decedent began work about 8 o'clock in the morning, and had worked about two hours before his death. In operating the drill, he was on his knees, leaning against the drill, his face being turned in a slanting direction downward toward the floor. The son was about 30 feet from him, with his back toward the decedent. He heard the drill stop, and turned around, and went immediately to his father. As soon as he reached decedent, he found him lying partly on his back and partly on his side, with his face toward the ceiling. There was an abrasion of the skin on the right side of the nose, from which blood was exuding, and also a spot described as "scratches" on the right temple, which was also bleeding. It appears from the evidence that in the roof of the room where these parties were employed was a substance known as kobo, which is something like dirty coal. The ceiling was 7 1/2 feet high; and on the morning of the day in question, the employee and his son had taken down kobo from the ceiling and piled it up on the floor. There was a layer about a foot and a half thick on the roof over the place where the decedent was employed. There was evidence that there were pieces of kobo lying on the floor in the room, varying in size from those as large as one's fist to 2 1/2 feet square. The decedent was lying on the pile of kobo that had been taken down and piled up that morning by the decedent and his son. He was not, however, lying under the place in the ceiling from which the kobo had been taken that morning.
The son testified that he did not notice any new pieces, aside from those that had been taken down that morning. He also testified that he noticed the drill which his father was operating, stop suddenly, and he heard a noise, "a kind of rattling noise,--sounded like kobo falling;" and that he heard this noise just a couple of seconds after the drill stopped. He testified that kobo makes a creaking sound before it drops, and that he was familiar with the sound, and that the sound he heard that morning was similar to the sound made by kobo when it breaks and falls. This drill was about three feet in front of decedent, and was still in the hole in the face of the coal vein, after he was found.
The mine physician who examined the body of the decedent at the time testified that the skin on the nose was peeled a little, and that there were a couple of little marks on the right temple. He testified that the cuts and scratches on the face were skin deep only, and that no bones were broken; that neither the nose nor the skull was fractured. He testified that there was nothing in the nature of the injuries which he observed, to produce death. The mark on the side of the head was at the junction of the frontal and temporal bones, and the witness testified that the thinnest bones in the skull are around the temple, and are probably from one-eighth to one-quarter inch thick, in a normal person. He testified that, in his opinion, there was no fracture of the bones of the skull of decedent, but that this could not be determined absolutely by an ordinary examination, but only by an X-ray examination, and that no such examination was made. He testified that a blow on the head could not cause death unless the inner table of the skull was broken, but that this could be broken and not be visible on the outside. He gave it as his opinion that the skull of the decedent was not broken on the inside by anything that produced the marks on the temple. He made a manual examination of the injury on the temple, but could not observe any depression at that spot.
The coroner, who was also a physician, and who examined the decedent, died before the hearing, and his testimony was not secured.
The physician testified to being present when the coroner performed an autopsy, which consisted of opening the decedent's chest and making an examination of his heart and lungs. No further examination was made, and nothing abnormal was discovered in these organs.
There was also evidence showing that the decedent had been for some time addicted to the use of intoxicating liquors, and had been seen intoxicated several times, but that he had not been drinking the morning of his death.
The doctor testified as an expert, in regard to alcoholism, gastric ulcers of the stomach, and arteriosclerosis, and said that, in his opinion, the decedent would have died if he had not received any blow; that he might have died from cerebral hemorrhage, or the perforation of an ulcer. He also testified that he could not say what caused the decedent's death, but concluded with the statement: "It might have been a number of different things."
The coroner's jury returned a verdict that the death of the decedent "resulted from natural causes." This verdict was offered in evidence.
The appellant challenges the sufficiency of the evidence to sustain the finding of the industrial commissioner. In cases arising under the Workmen's Compensation Act, the burden of proof rests on the claimant to establish that the injury sustained by the employee was one "arising out of and in the course of the employment." Section 2477-m, Code Supplement, 1913; Chapter 270, Acts of the Thirty-seventh General Assembly; Flint v. City of Eldon, 191 Iowa 845, 183 N.W. 344. This burden is not discharged by creating an equipoise. Griffith v. Cole Bros., 183 Iowa 415, 165 N.W. 577.
Where the evidence is in conflict, the finding of the industrial commissioner is final and conclusive. Hughes v. Cudahy Pkg. Co., 192 Iowa 947; Pierce v. Bekins Van & Storage Co., 185 Iowa 1346, 172 N.W. 191; Pace v. Appanoose County, 184 Iowa 498, 168 N.W. 916; Hanson v. Dickinson, 188 Iowa 728, 176 N.W. 823; Jackson v. Iowa Tel. Co., 190 Iowa 1394, 179 N.W. 849; Norton v. Day Coal Co., 192 Iowa 160, 180 N.W. 905, Miller v. Gardner & Lindberg, 190 Iowa 700, 180 N.W. 742; Rish v. Iowa Portland Cement Co., 186 Iowa 443, 170 N.W. 532; Flint v. City of Eldon, supra; O'Neill v. Sioux City Term. R. Co., 193 Iowa 41, 186 N.W. 633; Kraft v. West Hotel Co., 193 Iowa 1288, 188 N.W. 870.
The finding of the commissioner must be based on evidence that may be either direct or circumstantial and on the reasonable inferences that may be drawn therefrom. It cannot, however, be predicated upon conjecture, speculation, or mere surmise. In Clapp's Parking Station v. Industrial Acc. Com., (Cal.) 197 P. 369, the court said:
See, also, Wasson Coal Co. v. Industrial Com., 296 Ill. 217 (129 N.E. 786); Von Ette's Case, 223 Mass. 56, 59 (111 N.E. 696); Wisconsin Steel Co. v. Industrial Com., 288 Ill. 206 (123 N.E. 295); Peterson & Co. v. Industrial Board, 281 Ill. 326 (117 N.E. 1033); Gentelong v. American Hide & Leather Co., 194 A.D. 9 (184 N.Y.S. 808); Ohio Bldg. S. V. Co. v. Industrial Board, 277 Ill. 96 (115 N.E. 149).
We regard the foregoing rules as well established in cases of this kind. The difficulty lies in applying them to the facts of any particular case. It is obvious that other cases, cited as precedents on fact questions, are valuable only as illustrating the manner in which courts have dealt with a somewhat analogous state of facts. Owners of Ship Swansea Vale v. Rice, L. R. App. Cas. (1912) 238; Peoria R. Terminal Co. v. Industrial Board, 279 Ill. 352 (116 N.E. 651).
In the instant case, there is no direct evidence whatever as...
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