Weakley v. Cook, 9178

• Decision Date: 14 November 1952
• Docket Number: No. 9178,9178
• Parties: WEAKLEY v. COOK et al.
• Court: Montana Supreme Court

Page 926

249 P.2d 926

126 Mont. 332

WEAKLEY v. COOK et al.

No. 9178.

Supreme Court of Montana.

Nov. 14, 1952.

As Amended on Denial of Rehearing Nov. 26, 1952.

Franklin S. Longan, Charles F. Moses and Robert L. Jones, Billings, for appellant.

Thomas C. Colton, Billings for respondent.

BOTTOMLY, Justice.

This is an appeal from a judgment of the district court of Yellowstone county, affirming an order of the industrial accident board granting compensation to Mrs. Agnes Weakley, widow of Glen Weakley, deceased.

On February 23, 1950, Glen Weakley was in the employ of Bruce Cook, who operated a transfer company at Billings, Montana, and who was covered by and operating under plan two of the Workmen's Compensation Act of the state of Montana, with the Idaho Compensation Company as insurance carrier. Mr. Weakley had worked for Mr. Cook continuously for some 17 years prior to February 22, 1950. At all times prior to February 22, 1950, Mr. Weakley had been a strong, healthy and hard worker, driving a dray or van and loading and unloading articles as are usually transported by a transfer company.

On February 22, 1950, Weakley, while so employed and in the course of his employment, and while unloading steel bars from his van, inserted a hook behind the wire on the bar or angle iron which weighed about 200 pounds, and while trying to pull the bar the wire broke, causing Mr. Weakley to fall over backwards on his back. Shortly thereafter Weakley became sick, with an outward appearance of paleness and profuse perspiration. He was taken home where a short time later he was found unconscions with his tongue hanging out. Dr. Phillip E. Griffin was called and the doctor found the patient suffering from concussion with delayed shock and a bruised left shoulder. The doctor prescribed medicine and advised bed rest with ice packs to his head and ordered Weakley to remain away from work. Weakley was attended by his doctor several times thereafter and on March 2, 1950, Dr. Griffin permitted Weakley to return to work. Dr. Griffin found that Weakley had arteriosclerosis. Weakley returned to work, but on account of his condition his employer assigned him to lighter work.

On the evening of April 18, 1950, Mr. Weakley had another attack and Dr. Griffin was called. Upon his arrival he pronounced Weakley dead. In Dr. Griffin's opinion the cause of death was coronary thrombosis.

Agnes Weakley, widow of Glen Weakley, filed her claim with the industrial accident board and thereafter the board held a hearing, and after hearing the evidence entered its findings and order in favor of the claimant and against the insurance carrier. The carrier made application for a rehearing which was denied by the board. The insurer then appealed to the district court. The district court, after considering the testimony before the board and additional testimony given before the court, entered its findings of fact, conclusions of law and judgment affirming the order of the board. From that judgment the defendants appeal.

It is conceded that Glen Weakley was an employee of Bruce Cook; that Weakley suffered an injury resulting from an industrial accident on February 22, 1950, arising out of and in the course of his employment; and that he died on April 18, 1950.

The question for determination is as to whether or not the injury received from the accident of February 22, 1950, was a contributing factor and the proximate cause of his death.

The evidence clearly shows that for some 17 years prior to and up to the time of the accident Glen Weakley was a strong, hard working man, doing heavy manual labor. John Bruce Cook, Jr., son of the owner of the Bruce Cook Transfer, testified:

'Q. You had a chance to observe Mr. Weakley in his work and his physical condition for a great many years prior to the date of his injury on February 22, 1950? A. Yes, sir.

'Q. What sort of a man was he from a healthy, physical standpoint? A. Well, to my way of thinking, he was, for a man his age, he was in very good shape and he was a very good worker. Sometimes I thought he was too good a worker, too loyal, very loyal to the company, very much so.

'Q. You observed him performing his duties in that respect for probably thirteen to fifteen years prior to his death? A. That's right. * * *

'Q. You had the opportunity to observe him after he returned to work after the accident, two weeks after February 22nd, around the first of March; what have you to say as to his working capabilities and general physical condition? A. Well, some days he was fairly good. But he complained of his shoulder and his arm and his chest, but he still tried to do his work. But he definitely wasn't in too good a shape.

'Q. In other words, he wasn't the physical man he was before? A. No, decidedly not.

'Q. And during that time you saw him every day, every working day? A. Yes, every working day.

'Q. Is there anything you could add for the help of the board in deciding this case? A. Well, I just don't know what to say, but I think he definitely had been injured, and whatever took him at the time he...