Stoddard v. Mason's Blue Link Stores, Inc., 6212

• Decision Date: 20 May 1935
• Docket Number: 6212
• Citation: 55 Idaho 609,45 P.2d 597
• Court: Idaho Supreme Court
• Parties: GLEN STODDARD, Respondent, v. MASON'S BLUE LINK STORES, INC., Respondent, and STATE INSURANCE FUND, Appellant

45 P.2d 597

55 Idaho 609

GLEN STODDARD, Respondent, v. MASON'S BLUE LINK STORES, INC., Respondent, and STATE INSURANCE FUND, Appellant

No. 6212

Supreme Court of Idaho

May 20, 1935

WORKMEN'S COMPENSATION LAW-INDUSTRIAL ACCIDENT BOARD, FINDINGS-REVIEW BY DISTRICT COURT-COMPENSABLE INJURY-HERNIA-ACCIDENT-PLACE AND TIME-EVIDENCE-NOTICE OF INJURY-COSTS ON APPEAL.

1. Courts may set aside findings of Industrial Accident Board unsupported by competent and substantial evidence.

2. Whether findings of Industrial Accident Board are supported by competent and substantial evidence is a question of law to be determined by courts.

3. A "hernia" is the protrusion of some organ, or tissue from its normal situation through an accidental or natural opening in the wall of the cavity in which it is contained, and the mere presence of a perforation, or an aperture in the cavity wall, either accidental or natural and through which some organ or tissue may protrude at a later time, is not a "hernia" within Compensation Law (I. C. A., sec. 43-1116).

4. When evidence was undisputed that protrusion of gut from the mesentery was caused by clerk's accidental fall while carrying case of fruit, and that clerk's condition was aggravated by lifting of bunch of bananas two days later finding that hernia did not result from "personal injury accident arising out of, and in course of employment," held properly set aside as not sustained by competent and substantial evidence (I. C. A., sec. 43-1116).

5. Where accident for which compensation is claimed cannot be fixed as happening on a specific date, evidence establishing time with reasonable probability is sufficient.

6. Evidence showing that mesentery hernia was caused when clerk carrying box of fruit accidentally fell, and that clerk's condition was aggravated two days later by lifting of bunch of bananas, held sufficiently certain as to time of accident (I. C. A., sec. 43-1116).

7. Where employer had knowledge of employee's injury within time fixed for giving of statutory notice, giving of statutory notice under Workmen's Compensation Law was unnecessary.

8. Judgment for cost granted by district court on reversal of order of Industrial Accident Board denying compensation, held proper (I. C. A., sec. 43-1411).

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Proceedings under Workmen's Compensation Law. Appeal from judgment of district court reversing order of Industrial Accident Board denying claimant compensation. Affirmed and remanded with instructions.

Judgment of the district court affirmed and cause remanded with instructions. Costs awarded to claimant.

P. C. O'Malley and C. W. Poole, for Appellant.

"The burden is upon the compensation claimant to prove both his disability and that the injury was caused by accident arising out of and in the course of his employment." (Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992; Strouse v. Hercules Min. Co., 51 Idaho 7, 1 P.2d 203.)

On appeal to the district court from an award, or from an order denying compensation, made by the Industrial Accident Board, the jurisdiction of the court is limited to a review of questions of law. (I. C. A., sec. 43-1408; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 783, 786, 203 P. 1068; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227.)

Lewis A. Lee and W. Lloyd Adams, for Respondent Glen Stoddard.

Acceleration or aggravation or latent physical defect, aneurism, resulting from a not unusual strain in lifting tackle into wagon and attempting to put burr on bolt, held an accident. (In re Larson, 48 Idaho 136, 279 P. 1087.)

Evidence showed that employer had knowledge of employee's injury within time employee was required to give statutory notice; hence lack of statutory notice did not prevent recovery of compensation. (Code 1932, secs. 23-1205, 43-1202; Cooper v. Independent Transfer & Storage Co., 52 Idaho 747, 19 P.2d 1057.)

Where final findings of industrial board are not supported by competent evidence they are not conclusive on appeal to district and supreme courts. (In re Hillhouse's Estate, 46 Idaho 730, 271 P. 459.)

In cases where evidence is not conflicting and not in dispute, application of law to such undisputed evidence raises question of law and not of fact. (Johnston v. A. C. White Lbr. Co., 37 Idaho 617, 217 P. 979; Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515.)

BUDGE, J. Morgan, Holden and Ailshie, JJ., concur.

OPINION

BUDGE, J.

From a judgment of the district court, reversing an award in favor of Mason's Blue Link Stores, Inc., employer, and its surety, State Insurance Fund, and directing an award in favor of the claimant Glen Stoddard, this appeal is prosecuted.

The record discloses, in substance, the following: Claimant on or about April 13, 1933, as a part of his regular duties as a clerk for his employer, Mason's Blue Link Stores, Inc., which company carried on a general store business, while carrying a case of oranges and lemons down a flight of stairs missed the last step, stumbled and felt a sharp pain in, and became sick to, his stomach. After a short rest the pain eased somewhat. Claimant continued work that and the following days, although he did not feel as well as usual. On Saturday, April 15th, while hanging a bunch of bananas claimant became nauseated and sick to his stomach and secured the assistance of another clerk to hang the bananas and then went down in the basement and vomited. Although not feeling well claimant continued at work throughout the remainder of that day. Near midnight Saturday, or early Sunday morning, after retiring, claimant felt a sharp pain in the region of his stomach which progressed in severity and about 6 o'clock Sunday morning he visited the office of a physician and surgeon where he remained the day, during which time he vomited several times and was given opiates to relieve the pain. About 6 P. M. of that day he was taken to the home of his grandfather where at about 9:30 or 10 P. M. the physician visited him and found him in shock and violently sick. Claimant was immediately hospitalized and about 1 A. M. Monday morning was operated on and found to be suffering with mesentery hernia, the condition that presented itself being a considerable quantity of distended and discolored intestines, at least two feet of which had gone through a perforation in the mesentery. The bowel was removed from the perforation and placed in position and claimant made a normal recovery.

Upon claimant's application for compensation the Industrial Accident Board made findings of fact substantially in accordance with the foregoing recital, and further found in finding number VI as follows:

"That the condition from which claimant was found to be suffering and the operation performed upon him on the 17th day of April, 1933, was the result of a mesentery hernia; that said hernia had existed to some degree prior to the 13th day of April, 1933, and was not the result of a personal injury by accident arising out of and in the course of claimant's employment with the defendant, Mason's Blue Link Stores, Inc."

The board denied claimant compensation. On appeal the district court determined that all the findings of the board, with the exception of finding number VI, above quoted, were substantially correct and supported by competent evidence and adopted them as the findings of the court, but concluded that finding number VI was not supported by the evidence and was erroneous and reversed the decision of the board in this respect, awarding compensation to claimant.

All of appellant's assignments of error are fundamentally based upon the proposition that the court erred in vacating and setting aside the board's finding number VI and in concluding that the hernia appeared suddenly and immediately following the accident of April 13, 1933, and did not exist in any degree prior thereto, and that said hernia resulted directly from and was caused by such accident while claimant was in the performance of the duties of his employment. With reference to the court's action in vacating and setting aside the board's finding number VI for the reason the same was erroneous and not supported by the evidence, the applicable rule appears to be that announced in Fields v. Buffalo Idaho Min. Co., ante, p. 212, 40 P.2d 114, namely: That it is within the province of the court to set aside findings unsupported by competent and substantial evidence and, if the evidence does not support a finding or findings a question of law is presented for determination by the courts. Appellant's theory is that the rent, tear, perforation or rupture in the mesentery in and of itself constituted a hernia, and that under I. C. A., sec. 43-1116, unless the proof discloses that the aperture in the mesentery occurred or made its first appearance at the time of and as a result of the accident, respondent suffered no compensable injury, even though the proof conclusively shows that the protrusion of the bowel or intestines through the aperture or perforation resulted directly from the accident and did not exist in any degree prior thereto.

The statute, I. C. A., sec. 43-1116, with relation to compensation for hernia, provides:

"In all cases of hernia resulting from injury by accident alleged to have been sustained in the course of and resulting from employee's employment, it must be proved:

"1. That it was an injury by accident resulting in hernia.

"2. That the hernia appeared suddenly and immediately following the accident.

"3. That the hernia did not exist in any degree prior to the injury by accident for...