*1 418 operations plan
breeding of to their stock order continue ready surplus for market- when such stock moved sale. should be proof
Worthy particular is absence of .that of note the right ownership, any openly at time asserted a of decedent any Signifi- partial otherwise, it. to the livestock or of any plantiffs part showing on that also the lack cant decedent at assuming any disapproved time of defendant’s marketing the over livestock and his same full control the theory Altogether that as sole owner. inconsistent partial property proof in the is the held interest decedent carry the on tax defendant to same directed as his own. The tax assessor testified that decedent rolls property belong- that the on the farm stated him any Also, if the livestock on the farm ed to defendant. Henry Swanson was at the time of the death E. “surplus” proof of there is no that fact. The character contrary. proof is to On hand at that time were 22 cows calves, 40 or 18 a bull and 35 to 17 brood sows. supports
We think evidence the view that decedent recognized property in dis- defendant the owner of pute former, and that the under the loose and informal busi- right arrangement parties, had ness between crops from share in the returns livestock sold. Deem- altogether ing the evidence sufficient to sustain the decision affirmed, judgment appealed from trial court the Judges All the concur. Respondent, Appellants
COOPER, VINATIERI, al., et
(43 747) N. W.2d (File Opinion 15, 1950) August No. filed 9147.
Rehearing denied October *2 Tom Kirby, of Simons, all Blaine J. McDonnell, Gene Appellants. Falls, Sioux for Defendants and French, Yankton, for Claimant' French, W. W. Louis B. Respondent. and appeal HAYES, judgment P.J. This is an from a of reversing circuit court an award the Industrial Commis- compensa- sioner. The of award the commissioner denied Cooper, claimant, tion to the Florence widow of Theodore Cooper. A. sixty- age husband, Claimant’s deceased then of the employed by appellant two, was Yinatieri to in re- assist
novating relaying clogged Lowering part sewer line. required of the sewer line two to three feet was in order to provide proper drainage. Cooper trench, worked in ma- chine-dug being part tile, to the sewer of the dislodge usually shovel, tile with a two sections at a rope time, purpose to fasten a to the same for the hoisting ground hoisted, the tile to level. Another worker - relaying. lowering cleaned and returned the tile for In grade digging proper or ditch most trench helper, Cooper’s helper. This in addition to the done relaying deepening covering trench, ditch or assisted in hoisting replaced of tile from tile. None of by Cooper. The latter did not remain the ditch was done thirty more than minutes at a time. the ditch Testimony unpleasant emphasizes na- the record including work, or fumes attendant ture of the therewith, the odor part participa- disposition on the those ting undertaking get shown, done. It is not in the disposition however, than normal induced other activity by Cooper. on a number He had exertion and *3 prior others. similar for Vinatieri and occasions done Cooper going had com- to work for Vinatieri Just pleted job more than a month another lasted sewer which he than the work and which was described as much worse was hired to do for Vinatieri. working Cooper for com-
After a week Vinateri plained up” feeling or that the fumes a “choked and said working gas” making quit him He “sewer was sick. dry cough developed first for He for which he Vinatieri. sought chiropractic treatments, relief in felt somewhat bet- days upon a few and then a doctor of medi- ter for called diagnosed as arteriosclerotic cine. The latter his ailment with'resulting decompensation, mitral stenosis heart disease hypertension. did not abate the and deterioration of Prescribed medicine Cooper hospital- muscle and was heart days. days followed in less than two ized ten later. Death Cooper period the date when went The work for Vinatieri and the of time between four date of death was weeks. his job Cooper ill and left his At the time when became complaint pains or heart to his fellow he made no of chest job, employer spoke employee shortly he to his with whom on the wife when he went he said he felt sick to his after suffering was, however, from shortness of breath home. He thought From one of the exhibits it is had a cold. and he pain Cooper mention to the made some of chest that noted regarding pain is This notation first consulted. doctor he testimony. unexplained medical testimony doctors, one of two who attended From Cooper hospital performed at the other an who autopsy, including an examination of the heart and other organs, Cooper isit established that afflicted heart was project disease when he went to work on the described employed by exertion him that on the was aggravate such as would and accelerate that disease. Wheth- Cooper er or not aware of was his diseased heart not dis- testimony upholds closed. The of his he wife that view apparently good perhaps a man of health aware true result his condition as a of arteriosclerosis when employment testimony last took for Vinatieri. The medical Cooper coronary leaves no doubt that suffered occlusion employment about two weeks he left after that and that the leading producing occlusion was the factor in death a few days thereafter. testimony
From the facts related and from we deem unnecessary spread commissioner, in further detail the among things, other found as “That follows: the said Theo- Cooper existing dore A. came to his death as the result of an running resulting condition, course, heart its normal any causes, death from normal and not from accidental in- jury arising employment by out of and in the course of his adopted Ehrum F. Vinatier.” The circuit court the views Cooper’s working death was hastened for Vin- *4 “injury by atieri; that claimant’s husband had suffered an arising employment”, out of in accident and that an and the of course the compensation of
award should be made to claim- presented. ant. The issue here is thus Appellants respondent opinion and refer to the in McDonald, —, James 478, 479, 73 S.D. 39 N.W.2d wherein ascertaining it is written: “The trial forum for material facts is the Industrial Commissioner, and facts so found must be by accepted reviewing palpably the court unless so erron- upon unreasonable; eous record as be such facts standing substantially upon plane the same as the verdict of * * * jury. undisputed the no It where the facts are and
conflicting respecting inferences the material ultimate question fact can be drawn that the becomes one of for law rulings supporting the court.” The of this court quoted opinion Ap- are in statements cited in that case. pellants argue drew from the facts that the commissioner deny- that his award of the case reasonable inferences and Respondent’s ing compensation must be sustained. con- part “The her brief follows: tentions are in stated in as showing Cooper’s accelerated work contributed to and facts undisputed conflicting re- are no inferences death and his specting drawn, liabil- ultimate fact can be and material * ** position ity is, therefore, of a matter of law. It is the pre-existing of a claimant that the death a workman from by aggravated or in disease or condition which accelerated by though being performed him, man- his usual the work ner, pensable by accident, intended, as is caused and therefore a com- injury unexpected.” claim, itself is where the by “injury” “personal injury” terms are The and Compensation the Workmen’s Law of this state defined thus: “Only by arising injury of accident out and course any employment, and form shall not include disease 64.0102(4). injury.” except from the shall result SDC' provides: Following “The 64.0104 this definition SDC subject employee granted right to an and remedies herein injury by personal title, or death acci- on account to dent employment, arising shall in the course of out rights employee, his all other remedies of such exclude personal representatives, dependents, kin, ac- or next of on Beyond injury the limits or death.” fixed count such the commissioner and the courts declarations law these liability imposing upon the em- cannot extend reach ployer. And rested the claimant estab- the burden compensa- provides her one for which the law lish tion. claim as County, 260 N.W. Haddorf v. Jerauld S.D. 404. ultimate fact for determination
The material questions answers to the whether commissioner involved injury which arose husband sustained claimant’s employment by whether out Vinatieri meaning “only injury of those accident” within *5 quoted findings code. The as found our words negative questions. answers to these commissioner embrace That employment during Cooper ill the course of became his partly due to his illness came on when did and that engaged performing appear fact that he was manual labor by proof by to us as settled We submitted claimant. inquire: employment What accident arose out of the produced injury? meeting problem In respondent urges aggravation that the or acceleration of the pre-existing Cooper heart disease from in which arose engaged brought and that therefore the work about the injury. earnestly argue fatal Her counsel that the accelera- partakes injury by tion of the disease the character of an compensable. They point accident and is therefore opinion to the Co., of this court Johnson v. La Bolt Oil 62 S.D. jurisdictions. 391, 252 N.W. and decisions of other We carefully many have examined the cited authorities and others. supra, readily distinguishable. case,
The Johnson is suffering was not Johnson from heart disease and the medi- testimony proved cal in his behalf that he sustained the hernia as a result of an unusual strain while lift- ing huge during employment. timbers the course of his He prior likely had no weakness or diseased condition to be aggravated by physical ordinarily efforts incident to na- employment. ture of his going
In the instant case we have man to work with just heart, job, a bad as he had done to the Yinatieri job doing and for more than a month before that manual type labor of the same under conditions described as much surrounding employment by worse than those his last Yin- testimony helper plainly atieri. The of his or co-worker performed greater effect that the latter far the share of the heavier or more burdensome tasks incident to Cooper the Vinatieri and that suffered no as a result of overexertion or unusual effort or strain. That he overtaxed his weakened heart the kind of work he was doing placed beyond question by testimony of both testimony Coop- This doctors. made it clear that a inman engaged er’s condition not have should in that kind of work doing likely bring exactly and that so would about what happened, congestive i.e., a “definite failure”, heart as term- They ed one of these doctors. both testified to the effect damage Cooper’s expected that serious heart was to be *6 424 consequence ex- combination
a natural anxiety. face of this ertion, mental In the foul air and testimony injury Coop- respondent the heart insists that “unexpected” in- therefore in the nature an er was Cooper by may jury did not be accident. It conceded expect However, of his true had he known his heart fail. reasonably expectations have been could not condition other than those testimony by we think whose the doctors part court must in considerable commissioner guided determining propriety for an of the claim be in injury the view We are mindful of as defined our code. may injury expected is to be also be that whether employee. Unless a man reflected in mind of the undertaking anticipates engaged no in- in a hazardous he jury nothing goes to work. We detect unreason- when hypothesis. in able “only” “by
Deleting appearing the words accident” compensable injury, in of a if this we the code definition greatly simplify problem. do, our These words could would injury part under not a of the definition were Almquist Nurseries, v. 218 the Iowa Shenandoah Code. 35, 724, A.L.R. A number of other 254 94 573. Iowa N.W. similar to those of Iowa. Decisions have laws states jurisdictions where have restrictive definitions legislative adopted by helpful. not been bodies are not divergent Indicative of the own are v. Industrial in 4, views under laws similar our Purity opinions the recent case of Biscuit Co. opinion Commission, Utah, 201 961. The P.2d Co., 95, v. Materials 70 S.D. 15 N.W.2d Johnson Concrete this court decisions of wherein our code reviews compensable injury interpreted ap definition of a plied. Printing Mellquist Co., 359, 51 213 In Dakota S.D. produced damaged 947, In an heart. Bar N.W. win v. accident Independent 275, Falls, Dist. 61 Sioux S.D. School 248 heart failure resulted from a fall caused N.W. other heart has heretofore been reviewed accident. No case right adjudging of a claimant to Work this court in Compensation. men’s Buckeye think the rule stated in Wilcox v. Coal
We applicable Pa.Super. 264, 603, 605, Co., 44 A.2d here. isIt therein written: “In the instant case was evidence *7 high pressure that the deceased had been for blood treated years autopsy long for ing and the disclosed evidence of stand- happened
heart disease. What
to the deceased
was
precisely
expected:
have
death caused
what could
been
already
upon
a
an
weakened heart and that strain
strain
necessary
was the
normal amount
exertion
result
ordinary
performance
in the
for the
the
of his duties
course
employed.
in
he
There
no
work which
was
acci-
Disability
merely
or
dent.
death
hastened
in
employee
regularly engaged
an
which
has been
cannot be
Indemnity
treated as accidental.”
Harford
Cf.
Accident &
Commission,
259,
v.Co.
Industrial
66 Ariz.
This court asked is now to hold in effect that under employee injury working our an statute 'who suffers while is compensation. entitled to A number of cases affirm awards they employees damage in favor of who suffered heart while practice continued to work as had been their usual or at jobs prior engagements. similar to their Some of these appears ingenious cases, escapes us, as it to construct from legislative limiting liability employ declarations of the injury injury by er to accidental or in our we accident. Cases look upon being helpful search of the law are cited Compensation C.J., § the footnotes Workmen’s pp. subsequent supporting 611-613, Acts, annotations statements as follows: “The sudden manifestation heart condition from the effect of strain or overexertion at injury meaning work constitutes an accidental within the requiring injury of an act the element of accident in the suf- although but, fered causal connection it has been held that there where expended between effort in the em- collapse ployment injury there anis accidental with- meaning general statute, in the of the as a rule the mere any proof of a manifestation heart condition without strain or at work does overexertion not show an accidental injury though development even of the disease .heart may employee’s have been hastened usual and ordin- ary work.” with squarely falls
We think that the instant claim jurisdictions where rule in the followed “heart” cases i.e., controlling, are applicable similar code provisions damage a diseased heart who suffers employee that an exertion and mental heart result of to his as a of labor to which has commonly incident kind “only injury by acci accustomed has incurred become phrase. dent” within the intendment of that ' Further, has failed we are view claimant for compensation that’ she establish which seeks as the same allowable under our code have provisions former of this in the decisions applied been construed court, any of them. *8 of the court reversed di- judgment
The circuit to enter judgment affirming rections award In- dustrial Commissioner.
ROBERTS, SICKEL, JJ., SMITH concur. RUDOLPH, J., concurs specially.
RUDOLPPI, (concurring). my J. It is that opinion squarely facts in this fall in Johnson holding case within Co., v. Concrete Materials 95. 15 4. Mr. Coop- S.D. N.W.2d ill er became on the Vinatieri but the discloses job. evidence circulatory system diseased condition of and heart The on* long standing. suffered of some gradual growth came on and was the result piece of work done. It was the cumulative effect particular time, many over a no one of which long period acts done harm, least the com- be identified as cause of at can of sudden- finding. missioner was in so No element justified evidence, nor is the precipitancy ness or is disclosed definite jury assignable to a circumstance.