Kaonis v. Ohio Match Co. , 64 Idaho 89 ( 1942 )

The question of fact involved in this case is as to whether Kaonis died as the result of an accident arising out of and in the course of his employment. If the exertion, incident to his employment, caused his death, it is a compensable accident according to the decisions of this court.

In Re Larson, 48 Idaho 136, 279 P. 1087, the court rejected the theory that, in order to be compensable, an injury must result from an accident such as "slipping, falling or unexpected happening outside of and disconnected with the personal injury." The fourth section of the syllabus in that case contains the following:

"Where, as result of employee's lifting tackle into wagon and attempting to put burr on bolt, latent physical defect, aneurism, was accelerated or aggravated and progressed further, causing death, strain, even though not unusual, was an accident that was compensable under Workmen's Compensation Act, * * *"

See, also, Beaver v. Morrison-Knudsen Co., 55 Idaho 275,41 P.2d 605; Cook v. Winget, 60 Idaho 561, 94 P.2d 676;Hieronymus v. Stone's Food Stores, Inc., 60 Idaho 727,96 P.2d 435; Pinson v. Minidoka Highway District, 61 Idaho 731,106 P.2d 1020; Aranguena v. Triumph Mining Co., 63 Idaho 769,126 P.2d 17. In the Pinson case, above cited, it is said:

"An 'accident' occurs in doing what the workman habitually does if any unexpected, undesigned, unlooked-for or untoward event or mishap, connected with or growing out of the employment, takes place."

In this case, Kaonis died, suddenly and unexpectedly, while performing the duties of his employment, and while doing what he habitually did. His death was unexpected, undesigned, unlooked for, and was accidental, within the meaning of the Workmen's Compensation Law as we have construed it, frequently.

A number of witnesses, who had known Kaonis ten years or more, had never heard of his being sick. The only accidents he is shown to have suffered was one to his leg, which caused him to lay off from work a day, and one, which occurred August 4, 1941, which resulted in his thumb being mashed, and caused him to remain inactive until September 1, 1941, the day of his death. On that day, after having remained idle for a period of four weeks, Kaonis resumed his labor as a top loader, in decking logs for respondent, Ohio Match Company. That work required the services of a man who was strong and nimble, in order that he might perform the labor and keep out of the way of logs being hoisted by a jammer and dropped on the deck.

The work Kaonis was doing on the day of his death and a few minutes before he died, was hard labor. With respect to it, Herbert H. Heineman, a co-laborer on the job, testified:

"Q. Was this work Nick was doing hard or easy work?

"A. I would say fairly hard work, plenty active — you got to be active on your feet if you are going to keep from getting hurt and getting anything done.

"Q. That morning, was Nick active or inactive, or keeping on the move?

"A. He was plenty active. Nick always a good man on his feet and he was plenty active, and apparently all right.

"* * *

"Q. What did you mean when you said getting down off the deck and unhooking the tongs?

"A. With gypo work we want to save time, we had to go fast to make it and this jammer has got a lot of power — if we could get a log up to the skidway before another log come, he unhooked the tongs and grabbed one log — we tried to deck one log before another one came.

"Q. You and the man on the deck would try to get the log decked before the man got back up to the deck?

"A. We tried to.

"Q. Would the man on the deck have to get on the ground?

"A. He would have to get off the deck.

"Q. To the ground?

"A. Yes.

"Q. Gypo work?

"A. Yes.

"Q. You were paid for as much as you produced?

"A. By the log.

"Q. Were you all working pretty fast?

"A. As fast as we could stand it."

Kaonis was an unusually strong, active man, forty-five years old. None of the witnesses heard him complain of any ailment, on the day of his death, nor at any other time. He worked during the forenoon of September 1, 1941, and, after a hearty lunch, to about twenty minutes after one o'clock of the afternoon of that day. While he was on the log deck, about six feet above the ground, decking logs, hoisted by the jammer, he fell therefrom and died immediately. No one saw Kaonis fall from the log deck, and the statement that he fell therefrom is based on the position of his body when it was found, and from the following testimony of the witness, Heineman, who was running the jammer at the time:

"Q. Were you in a position where you could see Nick all or part of the time?

"A. If I had been watching, I could see him, yes.

"Q. And it was your duty to watch him and Mr. May and the dragline and the log, as well as the motor?

"A. That's right.

"Q. Now, you just tell the board in your own way how you saw this picture out there that day?

"A. Nick handed the tongs down to Mr. May and he took them to the woods, and possibly three or four minutes, it might not have been that long, and then he, Nick, gave me the 'high sign' to go ahead — I couldn't see Mr. May."

Commissioner Langley: "Q. Where was Nick when he gave you the 'high sign'?

"A. Standing on the lower side of the deck possibly about three logs up. It was his business to watch Mr. May so I would know when to go ahead, and he gave me the 'high sign'.

"Q. Who — Nick?

"A. Yes. And then he apparently went and picked up the branding hammer and started to brand the logs. He always stayed on the end of the deck away from the line. He had to walk about six feet. That is what he was doing when I started to bring the log up. I was watching where the line was on account of dry snags hitting the line and hitting someone — it might fall and come up over the deck, which has been done before. I never, I hadn't watched him, I had my eyes off him maybe one minute and I happened to glance to where he should have been and he wasn't there, and I stopped — I released the friction and set the brake, and seen him laying in the skidway.

"Q. How far from him?

"A. To the end of the line.

"Q. Twenty or thirty feet?

"A. About thirty or thirty-five feet. I took the water bag and run down and tried to get him up. He was laying over the logs, had his head over the logs — one leg was over the logs and his head was laying over and against the bank. * * *"

Five physicians and surgeons testified in this case, and their professional qualifications were admitted. Dr. Greenwood (called by appellant) who examined the body of Kaonis, about five hours after his death, testified:

"* * * With the absence of blood from the mouth and ears and nose, and the absence of external injury, and the almost normal color — the paleness was due to the settling of the blood on the trip into town — the fact that this man had been working right along up until the time, led me to a diagnosis of acute dilatation of the heart.

"Q. In making that diagnosis, did you take into consideration his work record for the last two or three months before that?

"A. I took into consideration the fact that he had been off for almost a month preceding going back to work and that this was his first day back on the job.

"Q. Doctor, will you explain what elements you have taken into consideration in arriving at the diagnosis you have just given?

"A. Working men, where they are working steadily develop a certain heart capacity which will stand the vigorous exercise which they take — the same man after a month or so lay-off, if he attempts to exercise, the heart won't stand up over a certain length of time. I have had experiences of that sort where we did post-mortem and found ruptured hearts. In this case, this man had been a steady worker for years and he had laid off for a month and going back on the job — he had not done as they do in the spring, but he had gone right back to doing his regular work and the other boys were all toughened into it and, under that set-up, without any evidence of injury, complaint of any kind, and the sudden death, I diagnosed it acute failure of the heart."

Dr. John T. Wood, also called by appellant, after the facts leading up to the death of Kaonis had been stated to him in a hypothetical question, was asked:

"* * * under the set of facts, Doctor, what would you say was the probable cause of that death? * * *

"A. You want to know what I think is the cause of death?

"Q. The probable cause?

"A. With that description, I would say he had an acute heart attack."

Dr. Harold J. Sturgess, called on behalf of respondents, testified, in response to a hypothetical question stating the facts and describing the events leading up to the death that, in his opinion, the injury to Kaonis' thumb was not the cause of his death; also that, in his opinion, the cessation of his labors from August 4, 1941 to September 1, 1941, did not cause his death, when he returned to his usual and ordinary employment.

Dr. O.M. Husted, a physician and surgeon called by respondents, after the hypothetical question, above referred to, was propounded to him, was asked:

"* * * state whether or not in your opinion a lay-off for such a man from the 4th day of August to the 1st day of September of the same year would be sufficient to cause the death of such a person engaged in logging, as described herein, whether or not the lay-off would tend to cause death when the individual in question returned to his ordinary employment?

"A. No, I don't think it would, assuming as you have, that he was in good physical condition."

Dr. E.R. Fox was called by respondents and, after the hypothetical question, above mentioned, had been read to him, was asked:

"Q. * * * under those circumstances, Doctor, would you say whether or not the injury to the thumb was the cause of the death of Mr. Kaonis?

"A. I don't believe the injury to the thumb was the cause.

"Q. Would you say there was any connection between the injury to the thumb and the death?

"A. It is hard for me to conceive that possibility.

"Q. Doctor, having described the general physical condition of Mr. Kaonis, state whether or not in your opinion, the death of this individual was caused by a lay-off of from August 4, to September 1st, in other words, would the going back to work after a lay-off of approximately twenty-eight days be sufficient to, in your opinion, cause the death of Mr. Kaonis?

"A. No."

With respect to expert medical testimony, elicited by hypothetical questions, where the witness has not had an opportunity to make personal observation, but is testifying to an opinion based on an assumed state of facts, we said, inEvans v. Cavanagh, 58 Idaho 324, 331, 73 P.2d 83, 85:

"In one particular this case resembles Suren v. Sunshine Min.Co., 58 Idaho 101, 70 P.2d 399. There is little or no conflict in the evidence other than in the testimony of medical experts. The testimony of an expert as to his opinion is not evidence of a fact in dispute, but is advisory, only, to assist the triers of fact to understand and apply the testimony of other witnesses."

With respect to such testimony, we further said, in Suren v.Sunshine Mining Co., 58 Ida. at 108, 70 P.2d at 403:

"Each testified, truthfully no doubt, as to his own opinion. This is not a dispute between witnesses as to a fact, it is a conflict of their opinions, probably growing out of differences in their experiences and educations."

See, also, Nistad v. Winton Lumber Co., 61 Idaho 1,99 P.2d 52; Watkins v. Cavanagh, 61 Idaho 720, 107 P.2d 155.

The diagnosis, made by Doctors Greenwood and Wood, that Kaonis died of heart failure, is neither disputed nor criticized. The difference of opinion between them and the physicians and surgeons who testified for respondents is as to whether the work he was doing, when he died, following a period of inactivity and idleness, caused his death. No theory was advanced, as to the cause of death, other than that it was produced by his employment. It is true the cause of death has not been established conclusively, beyond reasonable doubt, but that is not necessary. In Newman v. Great Shoshone etc. PowerCo., 28 Idaho 764, 768, 156 P. 111, 112, we quoted from the opinion on rehearing in Adams v. Bunker Hill etc. Mining Co.,12 Idaho 637, 650, 89 P. 624, 628, as follows:

" 'There are very few things in human affairs, and especially in litigation involving damages, that can be established to such an absolute certainty as to exclude thepossibility, or even some probability, that another cause or reason may have been the true cause or reason for the damage rather than the one alleged by the plaintiff. But suchpossibility, or even probability, is not to be allowed to defeat the right of recovery where the plaintiff has presented to the jury sufficient facts and circumstances surrounding the occurrence as to justify a reasonable juror in concluding that the thing charged was the prime and moving cause.' "

In Roe v. Boise Grocery Company, 53 Idaho 82, 21 Pac. (2d) 910, we applied that rule to workmen's compensation cases. See, also, Riley v. Boise City, 54 Idaho 335, 31 P.2d 968;Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605;Leach v. Grangeville Highway Dist., 55 Idaho 307,41 P.2d 618; Webb v. Gem State Oil Co., 56 Idaho 465, 55 P.2d 1302;Wozniak v. Stoner Meat Co., 57 Idaho 439, 65 P.2d 768;Suren v. Sunshine Mining Co., 58 Idaho 101, 70 P.2d 399;Pierstorff v. Gray's Auto Shop, 58 Idaho 438, 74 P.2d 171.

In Suren v. Sunshine Mining Co., above cited, the rule is stated thus:

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

The order appealed from should be reversed with direction to make an award in favor of appellant.

I am authorized by Justice Holden to say he joins in this dissent.