243 N.W. 92 | S.D. | 1932
This matter was first heard before the Industrial Commissioner, who made findnigs of fact and conclusions of law, and entered judgment against the claimant. An appeal was taken to the circuit court, where the judgment of the Industrial Commissioner was reversed, and the claim for compensation was allowed.
The basis of the claim was a blood poisoning infection. The claimant contends that this infection was the result of two injuries which he suffered while in the employ of the defendants Dowd Bros. One of the claimed injuries was a blister on the hand, the other was a scratch on the hand.
[1] The claimant contends, and in this contention we believe he is correct, that, if the blood poisoning infection is the result of an accidental injury which the claimant received in the course of his employment with Dowd Bros., the claimant is entitled to recover compensation therefor. Edge v. City of Pierre,
The claimant further contends that the facts as found by the industrial commissioner with reference to the injury termed the "blister" establish that this injury was an injury by accident arising out of and in the course of the employment, and that the blood poisoning infection was the natural result thereof. With reference to this claimed injury, the commissioner found that, while the claimant was in the employ of Dowd Bros., as a teamster and laborer, a blister formed on the third finger of his right hand as the result of handling lines while driving a team and handling *59 levers on dump wagons; that the said blister was the result of continuous performance of work in the ordinary manner. The industrial commissioner held that the blister was not an accidental injury; he also held that the claimant had not traced the incapacity resulting from the infection to the blister.
[2] Whether a blister received in the ordinary course of employment, which breaks as a result of the work, allowing the entry of a germ and consequent blood poisoning, is an injury by accident, presents an interesting question; under such circumstances the breaking of a blister has been held to be an injury by accident in the following cases: Saddington v. Inslip Iron Co., (Eng.) 10 Butterworths' Workmen's Compensation Cases, 624; Scoville v. Tolhurst Mach. Works,
In his petition for a hearing before the industrial commissioner, the claimant failed to make any mention of or to base any claim upon the injury we have referred to above as the scratch, but based his claim entirely upon the blister. At the hearing, however, he testified that he had received a scratch while moving barbed wire in the employ of Dowd Bros. Upon cross-examination he could not fix the time with any certainty, except that the hand was scratched while on the "Howard job." There was introduced in evidence a statement signed by the claimant some time prior to the hearing. This statement, in so far as it refers to the scratch, is as follows: "I think I might have stuck a thistle or piece of wire in my hand, but I don't know. I don't remember sticking anything in my hand, but we had a lot of fencing to move, and I helped to do that, and I thought that maybe I stuck something in my hand then." The commissioner found with reference to the scratch as follows: "That while so employed, plaintiff also received a scratch on said finger from handling barb wire." "That it is uncertain when the scratch from the barb wire occurred, and where it occurred, and whether in the course of plaintiff's employment." The "conclusion of law" was as follows: "That one of the alleged injuries, to-wit: a scratch, by a piece of barb wire, was a mishap or untoward and unexpected event, but is not traceable to a definite time and is not shown to have caused the incapacity of Plaintiff and is not shown to have occurred in the course of Plaintiff's employment."
[3-5] The claimant insists that the commissioner's findings are inconsistent in that he has found in one place that the scratch was received in the course of his employment, and in another place that it was not. The circuit court recited in its order that the findings were inconsistent, and then found as a matter of fact that the scratch was received in the course of the employment. Whether this was within the authority of the circuit court, in view of the rule announced in the case of Day v. Sioux Falls Fruit Co., *61
In addition to finding the facts as above set out, the commissioner found "that the said incapacity cannot be traced to any definite injury." Again the finding was "affirmative in form of the converse of the facts as to which claimant having the burden of proof has failed to sustain it." Edge v. City of Pierre, supra. In *62 effect, the finding amounts to a finding that the claimant had failed to sustain by his proof his burden of tracing his incapacity to any definite injury received in the course of his employment.
It might be that the commissioner could have found the facts differently, and reached a different conclusion, but we cannot say the findings are unreasonable or that the evidence preponderates against them to the extent that they are not justified. The commissioner heard the evidence and was able to see and hear the witnesses.
The judgment of the circuit court is reversed, with directions to enter judgment affirming the decision of the industrial commissioner.
CAMPBELL, P.J., and POLLEY and ROBERTS, JJ., concur.
WARREN, J., disqualified and not sitting.