Zwiercan v. Int'l Shoe Co.

• Decision Date: 02 January 1935
• Citation: Zwiercan v. Int'l Shoe Co., 87 N.H. 196, 176 A. 286 (N.H. 1935)
• Parties: ZWIERCAN v. INTERNATIONAL SHOE CO.
• Court: New Hampshire Supreme Court

176 A. 286

ZWIERCAN

v. INTERNATIONAL SHOE CO.

Supreme Court of New Hampshire. Hillsborough.

Jan. 2, 1935.

Transferred from Superior Court, Hillsborough County; Woodbury, Judge.

Proceeding by Josephine Zwiercan, administratrix, to recover compensation under the Workmen's Compensation Act for the death of her intestate, employee, opposed by the International Shoe Company, employer. To an order dismissing the petition for want of evidence of liability, plaintiff excepted, and the case was transferred to the Supreme Court.

Bill dismissed.

Chretien & Craig (Alfred J. Chretien, orally), of Manchester, for plaintiff.

Sullivan & Sullivan (Thomas E. Dolan, orally), of Manchester, for defendant.

ALLEN, Chief Justice.

The evidence furnished support for a finding that the decedent suffered an attack of heat prostration resulting fatally while at work in the defendant's employ. It was testified that he was well when he went to work in the forenoon, during the noon hour at home he looked weak, complained of his feet, and ate but little dinner, and on his return from work in the afternoon was red and very weak, going directly to bed without supper. The attending physician testified that his diagnosis of the case as one of sunstroke was correct. The day was unseasonably hot and humid.

The attack, occurring in the course of the decedent's employment, was an "accident" within the statute (Pub. Laws 1926, c. 178, as amended). Guay v. Brown Co., 83 N. H. 392, 142 A. 697, 60 A. L. R. 1284; Lybolt v. W. H. Hinman, Inc., 85 N. H. 262, 157 A. 579; Eaton v. Proctor, 85 N. H. 398, 159 A. 297.

The remaining question is whether it arose out of the employment. This is to be determined under the rule quoted and adopted in Guay v. Brown Co., supra, 396 of 83 N. H., 142 A. 697, 699, as follows: "'* * * * the essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative. The personal injury must be the result of the employment and flow from it as the inducing proximate cause.'"

It is generally held that if the work adds to the strain or exposure by reason of its character, it is an inducing cause of heat prostration. This is but an application of the proposition that there may be more than a single efficient cause' of an event But the usual test of proof governs and the evidence of an additional cause must be strong enough to support the conclusion as a reasonable inference. If the injury is not attributable to the work being done when it was sustained, it is not compensable.

The decedent's work was under a foreman in charge of repairs and maintenance. In the forenoon of the day he was stricken he was engaged inside the defendant's factory, greasing pumps, mending some leaking pipes on a steam table, and then elsewhere repairing a hot water tank. In the afternoon his labor was outdoors. In this he assisted in the construction of a staging by going after a ladder and passing up a few planks to workers on the staging. The staging was erected to do some work on a sprinkler system in which all the workmen on hand took a part. When the work was finished the decedent helped in taking down the staging. His last task of the day was to go with others for a flange of less than four pounds' weight and used in repairing a leak of a large gasoline tank. All of his various assignments were described as easy and requiring no exertion in strain or haste. And none of them brought him in contact with heat in excess of that of the weather.

The plaintiff argues hard physical exertion, high relative humidity when the steam at the steam table was turned on, and poor ventilation in the room where the hot water tank was, as factors of causation chargeable to the defendant. The evidence is that the decedent's work was not hard, that no steam was on at the steam table until the work there was completed, when, after it was turned on, the men at once left and went elsewhere, and that the hot water tank was in one of the coolest places in the factory, with windows and doors so that poor ventilation could not be claimed.

Also it is argued that the work of the afternoon on the sprinkler system and especially that near the gasoline tank, from reflection of heat, intensified the effect of the weather. The evidence is silent as to the nature of the work the decedent performed on the sprinkler system. While he "took a hand," others "done the most work." And the only evidence about heat from the gasoline tank is that it was no hotter around it than anywhere else. The decedent was near it only for a few minutes, and it does not appear that he did more than to stand by, after helping to bring the flange, while the work on the tank was being done by others.

In taking view of the evidence for its tendencies of proof, it is to be accepted as true. While the trier might reject it, his rejection would authorize no findings for which evidence is lacking. The rejection creates an emptiness of evidence, and no assumption of facts in conflict with discredited evidence may be made. Richardson v. Company, 77 N. H. 187, 180, 90 A. 174; Clairmont...