Walthoff v. Hall, 9152
| Citation | 44 N.W.2d 221,73 S.D. 483 |
| Decision Date | 11 October 1950 |
| Docket Number | 9152 |
| Parties | WALTHOFF, Respondent, v. HALL et al., Appellants. |
| Court | South Dakota Supreme Court |
This is a Workmen’s Compensation case. The Industrial Commissioner refused to make an award, and the circuit court reversed. The single question presented is whether the evidence is sufficient to support the findings of the Industrial Commissioner. We believe the evidence sufficient.
Claimant was employed in the kitchen of a restaurant and received her meals as a part of her compensation. Claimant testified that on the evening of December 27 while eating turkey or chicken dressing she swallowed something. We quote from her testimony:
Claimant continued working until New Year’s Day when she and her husband went to Winner for a visit. On the way back to Rapid City from Winner they were delayed by snow at Kadoka from January 2 to January 8, at which time she returned to her work in the restaurant. On the evening of January 8 she became ill and was taken to a hospital. On January 11 she was operated and there was removed from the small intestine a bone about 1½ inches long and 1/4 inch wide, with one sharp end. The doctor who removed the bone testified that he thought it was possible that the bone he removed could have remained in the stomach from December 27 until January 8 without causing trouble. He further testified that an object similar to the bone he removed might cause trouble within 48 hours.
The defendant offered in evidence three bones which were similar in appearance to the bone removed from claimant. The bones so offered and received in evidence were taken from a halibut fish by a local butcher on the morning of the trial. The manager of the restaurant where claimant was employed testified that halibut had never been served in his establishment.
On this evidence the Industrial Commissioner found that the “... bone removed from claimant’s digestive tract was a fish bone and not a chicken or turkey...
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...(1960) (quoting Taylor v. Town of Monroe, 43 Conn. 36, 44). See also Buckley v. Fredericks, 291 N.W.2d 770 (S.D.1980); Walthoff v. Hall, 73 S.D. 483, 44 N.W.2d 221 (1950). The social worker's opinion was not necessarily conclusive. DuPratt v. Black Hills Land and Abstract Co., 81 S.D. 637, ......
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