Suren v. Sunshine Mining Co.

• Decision Date: 16 July 1937
• Docket Number: 6448
• Citation: 58 Idaho 101,70 P.2d 399
• Parties: ELIZABETH SUREN, Respondent, v. SUNSHINE MINING COMPANY, Appellant
• Court: Idaho Supreme Court

70 P.2d 399

58 Idaho 101

ELIZABETH SUREN, Respondent, v. SUNSHINE MINING COMPANY, Appellant

No. 6448

Supreme Court of Idaho

July 16, 1937

WORKMEN'S COMPENSATION-ACCIDENT-CAUSE OF INJURY-EVIDENCE.

1.While it is incumbent on claimant to establish right to workmen's compensation by preponderance of evidence, it is not necessary that cause of injury or death relied on be proven to exclusion of other possible causes.

2.A widow was entitled to workmen's compensation for her husband's death resulting from lobar pneumonia under evidence disclosing that he had sustained chest injury which arose out of and in the course of employment, by falling on timber, and developed pneumonia a short time after accident and died a week after accident, and there was no evidence to show that pneumonia was produced by some other cause than his injury.

APPEAL from the District Court of the First Judicial District, for Shoshone County.Hon. Albert H. Featherstone, Judge.

Proceeding for workmen's compensation by dependent widow of deceased employee.Industrial accident board entered an order denying compensation.Appeal to the district court resulted in a judgment reversing order of board, from which this appeal is taken.Judgment affirmed.

Affirmed.Costs to respondent.

J. E Gyde and James E. Gyde, Jr., for Appellant.

For the claimant to recover an award in this case, it was incumbent upon her to show by a preponderance of the evidence that the deceased's death resulted from an accident arising out of and in the course of his employment with Sunshine Mining Company.(I. C. A., sec. 43-1001;Parkison v. Anaconda Copper Min. Co.,56 Idaho 610, 57 P.2d 1216;Hawkins v. Bonner County,46 Idaho 739, 271 P. 327;Webb v Gem State Oil Co.,56 Idaho 465, 55 P.2d 1302.)

Robert E. Brown and James A. Wayne, for Respondent.

Where sufficient facts and circumstances are shown by the evidence to support one theory as the prime and moving cause of a result, the courts will not permit another possible reason or cause to defeat the right of recovery in the one damaged.(Wozniak v. Stoner Meat Co.,57 Idaho 439, 65 P.2d 768;Beaver v. Morrison-Knudsen Co.,55 Idaho 27541 P.2d 605;Roe v. Boise Grocery Co.,53 Idaho 82, 21 P.2d 910.)

MORGAN, C. J. Holden, Ailshie and Givens, JJ., concur.Budge, J., dissents.

OPINION

MORGAN, C. J.

--Prior to and on September 3, 1935, Frank Suren, husband of respondent, was employed by appellant as a laborer in its mine in Shoshone County.On that day the and three other employees of appellant were engaged in putting a mining timber, fourteen feet long and about twelve inches in diameter, in place.The stope where the men were working had not been completely floored and the timber was lying on the floor in such a position that, in helping, or preparing to help, to move it, Suren's foot slipped from the floor into a hole or depression and he fell across the timber, striking it with his chin and the left side of his chest.Apparently he did not consider the accident serious at the time and resumed his work immediately, or shortly, after it occurred.He continued to work during the remainder of the shift, but on his arrival at his home he told of the injury and complained of a pain in his side.His wife, respondent herein, was temporarily away from home at the time of the accident and her mother, Mrs. Oldham, who resided with Suren and his wife, had charge of the household during respondent's absence.She testified, by deposition, that when Suren reached home she had his dinner ready; that he sat down at the table holding his side and said, "I don't believe I want to eat anything; I don't feel like eating"; that his side seemed to be troubling him quite a lot; that he did not eat his dinner but drank lemonade; that he made a pitcher of lemonade and drank it and lay down; that he complained of his side all the time; that he complained of a pain in the region of the heart under the left breast "just under the breast and along between the long ribs and the short ribs, he complained so much; just at the lower lobe of the lung."Her testimony further shows Suren did not go to work the next day (September 4) but stayed in bed most of that day and all night; that during the day "he just laid around home like any man would that wasn't feeling good; he didn't go any place"; that he was complaining and taking cold drinks all day."He would take lemonade and orange juice; that was all he did take that day.He didn't eat"; that he went to work the following day (September 5) and returned home at the usual quitting time that after returning home "he didn't do anything.He just sat around and laid down for a while and got up a while.He took a little walk out and come back and went to bed early; he didn't go to bed so early, but Sid Barker and I was here with him, but he went to bed about eleven o'clock, see; that is, he set by the table just leaning on the table drinking lemonade all the time.He didn't lie down and he felt too bad to set up, but he would lean on the table, leaning over to one side"; that September 6th he was in bed most all day."He would just get up and set on the lounge and lie down here and then went to bed again for a while.He seemed to be just kind of resting, and he still continued to drink his lemonade and orange juice but he didn't eat anything.Why, I did make a mistake.He sent to town and got beefsteak and he chewed some of it and kind of sucked the juice out of it but he didn't cat any of it or try to."She further testified that he did not return to work on Friday; that on Saturday, September 7th, he asked her to call Dr. Lindsay, which she did.

Dr. Lindsay testified to having made an examination of Suren; that he had a temperature of approximately 103; that he examined him with a stethoscope and found "on the left side, low down in the region of the nipple line and back from that, a defined area of consolidation, beginning consolidation.The sounds were dull, not normal lung sounds at all.He was breathing very rapidly and to me seemed to be a very sick man at the time"; that "there was an abrasion of the skin over this area and also a slight laceration on the left side of his chin"; that Suren said he had fallen while at work.

"Q.Did he indicate where he had been injured?

"A.He said he was struck on this same side. . . .

"Q.That was the left side?

"A.Yes."

The doctor further testified he diagnosed the condition of the lung as lobar pneumonia.He further testified:

"Q.From his condition at that time could you form or did you form any opinion as to how long he had been suffering from pneumonia?

"A.In a consolidation of the lung, probably two days and a half or three days I would think he had probably had temperature and beginning symptoms.

"Q.From your examination of Mr. Suren, did you form any opinion as to what was the cause of the pneumonia?

"A.I felt that his injury was at least a contributing cause to his pneumonia.How much, it would be impossible to state, as far as I could see."

On cross-examination, Dr. Lindsay testified:

"Q.How much of a blow would it take against a man's side to cause an injury to the lung?

"A.I don't know.

"Q.Would it be little or great?

"A.A very slight blow over the lung might cause an irritation of the pleura and injure the lung itself.

"Q.In your opinion would a slight blow cause such irritation?

"A.It could.

"Q.Can you explain to the Board a little more fully what you mean by a light blow, so the Board can have some idea how much of a blow it would take to cause an injury to the lung?

"A.It might not be a blow even.It might be squeezed or pressed enough to cause irritation there.Anything that would irritate the side deep into the chests cavity and around the pleura.

"Q.Would it likely do so?

"A.Not likely.

"Q.Could you squeeze a lung in its cavity without fracturing a rib, sufficient to hurt the lung?

"A.Yes.

"Q.Isn't it given by the authorities that it takes a very severe blow to cause lobar pneumonia?

"A.Not necessarily.

"Q.Does it take a severe blow to injure the lung?

"A.Probably a light blow--that is a question as to what is a light blow and a hard one.I am inclined to believe that a blow or squeeze sufficient to produce the symptoms he early complained of, would be sufficient to injure his lung and make it easier for pneumonia to occur."

He further testified that taking all the history and the examination into consideration he would say Suren's pneumonia was caused by his injury; also that "The exciting cause of his pneumonia was his injury, the exciting factor which lowered his residence of his lunges at that particular spot."The doctor advised Suren to go, at once, to the Wallace hospital where, by reason of his employment, he was entitled to free treatment and hospitalization, which he did.

Dr. John T. Wood, who did not see Suren during his last illness, and whose information was derived from hearing the testimony of other witnesses and from a hypothetical question which recited the history of the case, testified: "If I had been in attendance on that case I should conclude that the injury was quite an important contributing cause of the pneumonia."On cross-examination, Dr. Wood testified:

"Q.What kind of an injury would it be necessary for there to be for it to be a contributing cause, a severe or slight injury?

"A.I should have to be guided in answering that question by my reading.I had no actual experience myself with any traumatic pneumonia due to a chest injury.I have had no experience in my own practice due to a chest injury alone.In 32 years I have never seen a case of that kind.I have seen them with general injuries where the person was more or less smashed up from...