109 W. Va. 413 | W. Va. | 1930
Anna Machala, widow, filed a claim with the Compensation Commissioner on the theory that her husband’s death resulted
On a former hearing, this Court, being of the opinion that the evidence in regard to the cause and manner of the injury had not been sufficiently developed, remanded the case for further investigation in regard to certain “vital surrounding circumstances”, such as, possibility of injury en route to and from work, and, if decedent had received the alleged blow at 10:30 P. M., could he have continued until quitting time (half hour later), and then have walked home (1% miles) without nausea or undue pain? Machala v. Compensation Com’r., 108 W. Va. 391.
It appears that about 1:30 A. M., following the alleged accident, Machala awoke from sleep very sick, and vomited; At nine o ’clock the family physician, Dr. Zink, found him in- bed suffering from his right side. An- examination revealed a swollen condition, a noticeable tenderness and slight discoloration on the body over the right lobe off'the liver, the point of the alleged blow. Five days later death came. A post mor-tem, held seven hours thereafter by Dr. Neidermyer, at the instance of the Wheeling- Steel Corporation, disclosed an unnatural condition in the region of the right lobe of the liver. Drs. Zink and Kirkland were present, and both attribute the condition to a trauma, and state that, in their opinion, death resulted from such, injury. Dr. Neidermyer, who never saw decedent alive, while re-affirming his statement on the former hearing to the effect that “no other pathology was found”, added that he believed Machala’s death resulted from “coronary embolus ’ ’. However, no attempt was made to determine that this was the cause at the autopsy, which Dr. Neidermyer admits was very unsatisfactory. Considering all of .the attending circumstances, the evidence preponderates largely in favor of the theory advanced by Drs. Zink and Kirkland, whose testimony we have no reason to question.
This brings us to the phase of the case which seems to have influenced the Commissioner most in his finding. Did dece
To the foregoing we have the statement of Anna Machala that her husband told her less than two hours after reaching his home that he was hurt by the stoking bar striking him in the stomach half an hour before he quit work; the statement of Dr. Zink to the effect that Machala informed him of his injury on his first visit; the fact that one of the laborers who had accompanied him most of the way home the night before had been notified in the morning and on reporting to work at 3 o’clock that afternoon had informed one Matusic (decedent’s boss) that decedent would not be at work that day on account of sickness due to getting hurt with the stoking iron, while at work the night before-; and, also, that Anna Machala had a neighbor at the store call the company and ask for a doctor. The company did nothing until after death, at which time they directed Dr. Neidermyer to make a post mortem. None of the above is denied in any particular, except that the fellow-employees did not see claimant hurt, and did not learn of the injury until the following morning.
In our interpretation of the compensation act.we must remember that our legislature has shown an earnest endeavor above everything else to give material justice its due while formal rules of jurisprudence are pushed aside. We do not cling to the letter but on the contrary the interpretation is to be
The applicant, in this sort of proceeding, as in others, has the burden of proving his claim. But evidence sufficient to make a reasonable person conclude that the decedent was injured while performing his duties in the course of his employment is sufficient. 2 Schneider on Comp., sec. 537-. So the burden of proof rests upon the applicant to furnish evidence from which it can be logically drawn that the injury arose out of and in due course of the employment, but that such proof may be hearsay as well as direct. No rule may be laid down as to the degree of proof which is sufficient to justify
We therefore reverse the case and return it to the commissioner with directions to ascertain what amount is due the claimant under the law, and provide payment therefor.
Reversed with directions.