White v. Maverick Production Co.

• Decision Date: 01 July 1947
• Docket Number: 2360
• Citation: 182 P.2d 818,63 Wyo. 452
• Parties: FAIRY WHITE (FUGATE) on behalf of herself as the widow and in behalf of the minor children of Gerald R. White, Deceased, Claimant and Respondent, v. MAVERICK PRODUCTION COMPANY, a Corporation, Employer and Appellant
• Court: Wyoming Supreme Court

182 P.2d 818

63 Wyo. 452

FAIRY WHITE (FUGATE) on behalf of herself as the widow and in behalf of the minor children of Gerald R. White, Deceased, Claimant and Respondent, v. MAVERICK PRODUCTION COMPANY, a Corporation, Employer and Appellant

No. 2360

Supreme Court of Wyoming

July 1, 1947

APPEAL from District Court, Fremont County; C. D. MURANE, Judge.

Proceedings under the Workmen's Compensation Act by Fairy White (Fugate) on behalf of herself as the widow and on behalf of the minor children of Gerald R. White, deceased, claimants for compensation for death of Gerald R. White opposed by Maverick Production Company, employer. From an adverse judgment, the employer appeals.

Affirmed.

For the Appellant, the case was submitted upon the brief of Goppert and Housel and J. D. Fitzstephens, all of Cody, Wyoming, and oral argument by Mr. Ernest J. Goppert and Mr. Fitzstephens.

POINTS OF COUNSEL FOR APPELLANT

The burden is on the claimant to prove that the injury caused the death. Standard Oil Co. of Indiana vs. Sullivan, 33 Wyo. 223, 237 P. 253; Carter Oil Co. v. Gibson, 34 Wyo. 53, 241 P. 219; Associated Seed Growers v. Scrogham, 52 Wyo. 232, 73 P.2d 300.

The burden of proving the essential facts necessary to establish a case warranting the payment of compensation, rests upon the dependent in a case arising under the Workmen's Compensation Act as much as it does upon a plaintiff in any proceeding at law. The dependent must go further than simply to show a state of facts which is as equally consistent with no right to compensation as it is with such right. They can no more prevail if factors necessary to support the claim are left to surmise, conjectures, guess or speculation than can a plaintiff in the ordinary action in tort or contract. A sure foundation must be laid by a preponderance of evidence in spport of the claim before the dependents can proceed. Carter Oil Co. v. Gibson, supra.

The court should have given the positive testimony of the doctor who performed the autopsy and saw deceased controlling weight, as against the negative, weakened opinion testimony and not having done so, the order is contrary to law. Winthrop v. State Industrial Accident Commission, 2 P (2nd) 142; Nielson v. State Industrial Accident Commission, 13 P. (2nd) 517; Aranguena v. Triumph Mining Co., 126 P. (2nd) 17; Quail v. Industrial Accident Commission, 32 P. (2nd) 402.

For the Respondent, the cause was submitted upon the brief and oral argument of Mr. H. S. Harnsberger of Lander, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

As to liberal construction in favor of workman: In re McConnell, 45 Wyo. 289, 18 P. (2nd) 629; Koprowski v. Megeath Coal Co., 48 Wyo. 334, 46 P. (2nd) 61; Pero v. Collier-Latimer, Inc., 49 Wyo. 131, 52 P (2nd) 690; Baldwin v. Scullion, 50 Wyo. 508, 62 P. (2nd) 531; Fox Park Timber Co. v. Baker, 53 Wyo. 467, 84 P. (2nd) 736; Pope v. Safeway Stores, Inc., 54 Wyo. 266, 91 P. (2nd) 58.

If the findings are supported by inferences which may fairly be drawn from the evidence even though the evidence be susceptible of opposing inferences, the reviewing court will not disturb. Mansfield Engineering Co. v. Winkle, 133 N.W. 390; Lachance's Case, 122 Me. 506, 118 A. 37; Hartford Accident and Indemnity Co. v. Industrial Accident Commission, 202 Cal. 688, 262 P. 309; Winter v. Atkinson-Frizelle Co., 88 N. J. L. 401, 96 A. 360.

A burden of proof in a case like this has a different meaning from the burden in other cases; that is in cases where a plaintiff must sustain his claim by the weight of the evidence. All that is required to meet the burden in a case such as this is for the claimant to show that the disability was caused by the injury. Harvey Coal Corp. v. Pappas, 230 Ky. 108, 18 S.W.2d 958.

For workmen's appendicitis cases resulting from trauma, where the only testimony deemed sufficient was that of a single doctor stating that the trauma "could" have caused, or that trauma "might" have caused, or that the doctor "could see some connection of the trauma with" the disorder, see: Roland v. Employer's Casualty Co., 290 S.W. 895 (Texas); Clark v. Department of Labor & Industries, 131 Wash. 256, 230 P. 133; Star Pub. Co. v. Johnson, 83 Ind.App. 309, 146 N.E. 765; Fritz v. Rudy Furnace Co., 218 Mich. 324, 188 N.W. 528.

KIMBALL, Justice. RINER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is a workman's compensation case. The employer, Maverick Production Company, appeals from an award to the widow (since remarried) and three minor children of Gerald R. White, who died April 28, 1943, while driving a truck.

The case was tried in the district court without a jury. The judge found that the workman's death resulted from an injury, "a bruising and crushing of the shoulders, chest and neck," sustained in an accident April 6, 1943. The only contention of the employer on the appeal is that there is no substantial evidence to support that finding.

The employer was engaged in the business of transporting oil by truck from a pipe line terminal to Riverton, Wyoming. White was employed as the driver of one of the trucks which was powered by a Diesel motor and pulled a tank trailer. While the truck was being driven by White, on April 6, 1943, the rear axle of the trailer broke. White and a fellow workman who was with him jacked up the rear end of the trailer and placed a 12" x 12" block under the broken axle. White was under the axle lying on his side when the jack tipped and the rear end of the trailer dropped until the axle struck the block. This caused the broken end of the axle to press upon the upper part of the body of White, inflicting the injury described in the finding of the district judge. White crawled from under the truck without assistance. He said "he had quite a lot of pain," and his companion who thought White "was hurt quite bad" took him at once to a doctor at Riverton, 40 miles from the scene of the accident. The doctor at Riverton, Dr. Kendall, an osteopathic physician, in his report pursuant to section 72-121 (d), C. S. 1945, described the injury as "crushing of upper dorsal area with bruising and straining of ligaments of chest and shoulder girdles." At the hearing in the district court, Dr. Kendall testified that his examination of White on April 6, disclosed "evidence of bruises on his shoulders and chest, such as a crushing blow to him." He found no "evidence of dislocation or fractures, but strain of muscular tissue and ligament tissue through the upper chest." The treatment was "hot packs, heat to relax the strain, bruises of the muscles".

On April 8, the doctor found the patient improved, and discharged him from treatment. Thereafter, probably April 9 or 10, White returned to his job, and continued to work until his death on April 28.

The widow testified that White was 36 years of age at his death. He had never been sick before the injury of April 6. After the injury his side was bruised and discolored. He complained of pain in his chest and shoulders. There were no marks on his chest. She could tell he was suffering from the way he got around. He walked in a stoop, and could hardly straighten up. "He wasn't a person to say much, but you could tell by the way he got around it was hard for him to get around." "When he would sit down he couldn't raise up. He would always grab his back. It took him a little while to straighten up; that is the way he would get out of the truck." He never regained the condition of good health.

Another witness, who worked with White, and saw him "about every day" both before and after the accident of April 6, testified that before that accident White was in good health, active and able-bodied. Afterwards, "to get out of the truck he would complain about his back when he got out, he walked with a stoop, kind of stooped over. He complained to me several times about his shoulders and back still hurting him." The condition of suffering and complaints continued until near the time of White's death.

Another fellow workman testified that after the injury of April 6, White made "complaint two or three different times about his chest bothering him, that it was sore, hurting him."

At 9 o'clock on the night of April 28, 1943, White, alone, left Riverton on his usual run to the pipe line terminal, and about an hour later the truck was found sitting upright, in gear, with all its lights on, in the sage brush at the side of the road. White's dead body was in the cab. There was no signs of violence. An autopsy was performed by Dr. Ashbaugh, the county physician, who pronounced the death due to coronary thrombosis. There was no testimony to contradict Dr. Ashbaugh as to the immediate cause of death, and the question in the case is whether or not there is any substantial evidence to support a finding that the injury suffered by the workman in the accident of April 6, twenty-two days previous to the death, was a predisposing or contributing cause of the thrombosis.

Two physicians testified as experts, Dr. Rogers for the claimants, Dr. Ashbaugh for the employer.

Dr. Rogers testified that in his practice he had had "somewhat frequent" occasion to observe and recognize cases of coronary thrombosis. By a hypothetical question, setting forth the injury of April 6, the previous good health of the injured workman, and his death on April 28, pronounced to have been a result of a coronary thrombosis, the doctor was asked if he "would have an opinion as to whether or not that death was the result of the injury received on April 6, 1943." His answer was, "Yes, I would have an opinion." The examination then continued:

"Q. What is that opinion, doctor? A. That is a question that cannot be answered 'yes' or 'no'.

"The Court: You are asked for your opinion.

"A. It...