MRS. CARRIE MORRIS v. STATE COMPENSATION COMMISSIONER
(No. 10340)
Supreme Court of Appeals of West Virginia
Submitted January 10, 1951. Decided March 1, 1951.
425
Hillis Townsend, for appellant.
William R. Laird, and Mahan, White & Higgins, for appellee.
LOVINS, JUDGE:
This is a statutory appeal from an order of the Workmen‘s Compensation Appeal Board, denying workmen‘s compensation benefits to Mrs. Carrie Morris, hereinafter referred to as “claimant“, whose deceased husband, Harry Morris, at the time of his death, was an employee of the Page Mining Company, hereinafter referred to as “employer.”
A pathologist, in a report of an autopsy performed on the day of death, stated that the cause of death was undetermined, but that a terminal event in the death of Morris was edema of the brain and meninges. According to his report, decedent‘s son had told the pathologist that on the morning of his death his father had mentioned casually that “he was so tired that he would rather stay at home than go to work.” The employer in its report to the commissioner was unable to account for the death of its employee.
Hearings were held by the commissioner pursuant to a protest filed by the claimant, and the following facts were developed.
Several employees with whom Harry Morris was working testified that he appeared to be in good health when he reported for duty on the day of his death, and that he seemed to be in good physical condition during the course of the morning‘s work. At approximately 2:15 P.M., the customary quitting time, the decedent was not present for the trip out of the mine. His fellow employees, being concerned over his absence, went to a section of the mine where Morris had gone to change the discharge lines on a pump. The work to be done by decedent consisted of taking a hose from the end of one pipe and putting it on the end of another. Decedent was found dead, lying on his back, both hands down by his sides. His body was
The clothing of the decedent was wet, and he had vomited. There are two possible ways to account for the fact that Morris‘s clothing was wet. One witness testified that it was impossible for a person to perform the duties of pump man without getting wet. There is testimony that there was a water hole along the most direct and convenient approach to the pump. It is certain that if Morris had gone through the water hole, his clothing would have been at least partially wet.
The motor of the pump where decedent‘s body was found was operated by electricity, which was obtained by connecting the wire leading to the motor with the main current wire, sometimes called the “trolley wire“. Such connection was effected by manually placing the nip of the motor wire over the trolley wire. To stop the flow of electric power into the motor wire, the nip had to be removed. Decedent could not have done the work which he intended to do without first cutting off the pump motor, and removal of the nip was the only manner in which that could have been done.
A portion of the electric wire leading to the pump was immersed in the above-mentioned water hole, and one witness, a member of the searching party, testified that he removed the nip of this wire from the trolley wire before the party passed through the water, the witness being fearful that unless this precaution were taken, the water would be charged with electricity. The plain inference from such evidence is that the decedent, if he had passed through the water, might have been electrocuted. There is no evidence as to the distance from the water hole to the place where the body was lying. In view of the testi-
There is no evidence as to the voltage of electric power transmitted by any of the wires mentioned in the record.
The autopsy report disclosed no pathological symptoms or indications of electrocution. The mortician, who prepared the body for burial, testified that there was a brown mark about three-fourths of an inch long on the back of the left hand. The mark, though present before and after embalming, was more pronounced after embalming. Two witnesses who saw the body the following day said that they noticed a mark on the right temple about the size of a half dollar; that there was a mark extending across the inside portion of the fingers on the left hand; and that the hand appeared to be drawn into a cupped shape. The examining pathologist testified that he had removed a scab from the brown mark on the back of decedent‘s left hand, and that he concluded, after microscopic examination, that the lesion was not of recent origin. The witness further testified that the mark on the temple was a superficial skin lesion of recent origin caused by scratching over a rough surface. He stated as his conclusion that neither mark contributed to decedent‘s death. The pathologist further testified that decedent could have suffered an electrical shock without the body showing either pathological change or external marks. But in ninety to ninety-three per cent of cases of electrocution there are obvious marks resulting from it.
There is no evidence to show that decedent had been in ill health prior to the date of his death.
On April 24, 1950, the Compensation Commissioner set aside his former ruling, and allowed the widow‘s claim, awarding her the benefits as provided in the statute. An appeal was taken to the Workmen‘s Compensation Appeal Board. The commissioner‘s ruling was reversed by the
It is clearly shown that the death of the decedent occurred in the course of his employment. Therefore, the single issue presented upon this appeal is whether decedent‘s death resulted from his employment.
This Court has stated on many occasions that a spirit of liberality should be employed in applying the provisions of the Workmen‘s Compensation Act. Miller v. Comp. Com‘r., 126 W. Va. 78, 81, 27 S. E. 2d 586; Chiericozzi v. Comp. Com‘r., 124 W. Va. 213, 217, 19 S. E. 2d 590; Lester v. Comp. Com‘r., 123 W. Va. 516, 520, 16 S. E. 2d 920, 923; Prince v. Comp. Com‘r.; 123 W. Va. 67, 13 S. E. 2d 396; Burgess v. Comp. Com‘r., 121 W. Va. 571, 573, 5 S. E. 2d 804; Martin v. Commissioner, 111 W. Va. 420, 162 S. E. 486; Vandall v. Comp. Com‘r., 110 W. Va. 61, 158 S. E. 499; Bonner v. Comp. Com‘r., 110 W. Va. 38, 156 S. E. 847; Kincannon v. Comp. Com‘r., 107 W. Va. 533, 149 S. E. 665; Caldwell v. Comp. Com‘r., 106 W. Va. 14, 18, 144 S. E. 568.
The record discloses no direct evidence of how the death of Harry Morris occurred, but the absence of such evidence does not preclude an allowance of compensation benefits, if circumstances are shown from which it may be inferred that his death resulted from such employment. While it is incumbent upon the claimant to establish her claim by a preponderance of the evidence, this may be, and is, done by establishing physical facts that would warrant an inference that death was due to an injury received in the course of and resulting from the decedent‘s employment.
The rigid rules of evidence and proof which prevail in the trial of actions at law do not govern proceedings in claims for workmen‘s compensation. “The commissioner shall not be bound by the usual common law or statutory rules of evidence * * *.”
While a finding of fact by the Appeal Board is not to be disturbed unless shown to be clearly wrong, such rule is not applicable where the facts are undisputed, and the record will admit of reasonable inferences favorable to the claimant. Demastes v. Comp. Com‘r., 112 W. Va. 498, 165 S. E. 667; Goble v. Comp. Com‘r., 111 W. Va. 404, 162 S. E. 314; Poccardi v. Public Service Commission, 75 W. Va. 542, 84 S. E. 242. In the instant case, the claimant is aided by such inferences from the physical facts which have been established. Decedent‘s body was found lying across two electric wires, one of which was not insulated. His clothing was wet and he had vomited. The motor wire was partially immersed in a water hole through which it was necessary to pass to reach the pump. In order to stop the flow of electricity to the pump motor, it was necessary to remove the nip of the motor wire from the trolley wire, and such removal was effected by a member of the searching party after decedent‘s death, which fact indicates that the pump motor was running at the time of his death. Although a pathologist, who performed a thorough and complete post-mortem examination of decedent‘s body, reported no pathological change or external marks indicating electrocution, he testified that death could have resulted from electrical shock without such evidence being present after death. The foregoing
The theory upon which the employer would resist an award of compensation, that death probably resulted from natural causes, is based on unsupported conjecture. There is nothing in the record of this case to indicate that Morris was suffering from ill health either before or on the day of his death. It is true that the decedent‘s son told the examining pathologist that his father had said on the morning of his death that “he was so tired that he would rather stay at home than go to work,” but we do not deem this casual remark of the father to his son as evidence of ill health. Moreover, the sole abnormal finding in the report of autopsy is an edema of the brain and meninges, which the pathologist has stated was a terminal event in the death of Morris but not the cause of his death.
The employer contends that the case at bar is similar to that with which the Court was presented in Williams v. Comp. Com‘r., 127 W. Va. 78, 31 S. E. 2d 546. But we do not consider the Williams case as analagous to the instant case. In the Williams case it was definitely established that the employee‘s death was due either to heat prostration or to a heart attack, the sole question for decision being whether his death from a diseased physical condition was caused by some special or particular risk or danger attendant upon his employment. In the instant case the death, if connected with the decedent‘s employment at all, must be characterized as traumatic, since no indication of disease or organic deficiency which would cause death is disclosed by the complete and full autopsy performed by the pathologist.
The holding of this Court in Demastes v. Comp. Com‘r., supra, states a sound principle. In the Demastes case, the decedent, who worked alone, was found dead, lying on the ground, at the site of his work. The exact cause of his death was not disclosed, but the physical facts indicated that he had probably fallen or jumped about six or eight feet to the ground from a log. Although there was evi-
A casualty, disease or failure of some vital organ “severs the thread of life” of a human being. There is no material evidence that decedent suffered from any disease, and there is no evidence that any of his vital organs had failed to function. If the decedent had suffered from a disease or organic failure, such fact would undoubtedly have been disclosed by the full and complete autopsy. Death of the decedent from natural causes being eliminated, we think nothing remains as the cause of his death except a casualty. Decedent having been found dead in the circumstances hereinbefore stated, there remains the outstanding probability that he was electrocuted as a result of his employment.
Accordingly, the order of the Workmen‘s Compensation Appeal Board is reversed and the order of the State Compensation Commissioner is reinstated.
Order of Workmen‘s Compensation Appeal Board reversed; order of State Compensation Commissioner reinstated.
FOX, PRESIDENT, dissenting:
I cannot concur in the majority opinion in this case, and, therefore, file this dissent. Said opinion contains a fair statement of the known facts surrounding the death of
The evidence shows that Harry Morris was not feeling well on the day of his death, and vomit was found near his body after he was dead. What this indicates, I do not know; nor do the experts who had an opportunity to study the case reach any conclusion on that point. Electricity is employed in all large coal mines, and, of course, electrical current was present in the mine in which Morris died. It is just as probable that he died a natural death, as it is that he was electrocuted. Notwithstanding the liberality indulged in all compensation cases in favor of claimants, as it should be, the claimant bears the burden of proof and must establish the claim by a preponderance of the evidence. No rule of liberality should lead us to depart from the fundamental principle of law that he who asserts a claim has the burden of establishing it. The majority opinion states that the theory upon which the employer would resist an award of compensation, on the ground that death probably resulted from natural causes, is based upon unsupported conjecture. Let us admit this. On the other hand, the claim that his death resulted from
An able pathologist performed a complete autopsy on the body of the decedent. He reported that he found no pathological symptoms or indications of electrocution, but testified that death could have resulted from electrocution, without such evidence being present after death. The opinion then states: “The foregoing facts in our opinion warrant an inference that death was probably due to electrocution.” The mere fact that that death could have resulted from electrocution, a mere conjecture, is held to warrant an inference that death resulted from electrocution. Can this be the law?
Now in the first place, a finding based upon a mere probability is not usually upheld by the courts. In criminal cases, in particular, juries are often told that no degree of probability of guilt will suffice to convict a defendant. Of course, rules of evidence, with respect to criminal charges, are more favorable to a defendant than in law actions or in proceedings such as a claim for compensation. But even in a civil case, probability is not permitted to support a verdict unless there is some showing in the case that practically eliminates any other conclusion. To create an inference, itself based on conjecture and speculation, and base a finding of electrocution on the tes-
To show the extent to which the Court has gone to make this award of compensation, the same pathologist stated that in ninety-three cases out of one hundred, where death resulted from electrocution, some showing of that fact would appear externally upon the body of the deceased. This would certainly create an inference that Harry Morris died from some cause other than electrocution; and yet the seven chances that he might have died from electrocution are used as a basis for an inference that he did so die; and the ninety-three chances that he died from some other cause are ignored. This is carrying conjecture too far, even if it were permitted at all; and, of course, any lawyer knows that a court of law cannot reach conclusions in favor of either party based on mere conjecture.
The majority opinion is in direct conflict with the case of Williams v. Comp. Com‘r., supra. That case is ignored, discarded as inapplicable for no reason that I can see. As correctly stated in the majority opinion, it was well established that the death involved in that case was due to either heat prostration or to a heart attack. The doctors could not agree as to what caused death. One of them thought death was caused by heat exposure, but admitted that it might have been caused by a heart attack; and the other admitted that it could have been caused by a heart attack, but in his opinion heat prostration was the cause of death, in which event claimant‘s widow would have been entitled to compensation. This Court held that the claim had not been established. In principle, I can see no distinction whatever between that case and the case at bar. The majority opinion is attempted to be sustained by reference to the case of Pannell v. Comp. Com‘r., supra. That
I agree with everything that has been said in the argument of this case, and in the majority opinion, that in compensation cases the law should be interpreted with great liberality in favor of claimants. The statute itself is a humanitarian one, and the result of the State‘s act in trespassing on private rights to the extent of imposing liability on employers for compensation for death or injury without wrong on their part, and on the other hand curtailing the rights of injured persons, and their wives and children in case of death, from instituting actions of law against employers for injuries or death. The Legislature in taking this marked and humanitarian step, to provide against, so far as possible, fatalities which grow out of our industrial age, must have contemplated that the laws it enacted should be liberally construed and liberally applied in favor of the employee; but I cannot concur in an opinion which, in my judgment, departs from fundamental and well settled principles of law, as applied to the evidence necessary to establish a claim for compensation. Whenever we depart from those principles, and apply the law to one group of people in one way, and apply the same law to another group of people in a different way, we are simply leading the way to judicial an-
There is another rule of law which is plainly violated by the majority opinion, and that is that this Court will not reverse the Compensation Appeal Board unless it believes them to be plainly wrong. Scores of cases decided by this Court state this as a plain principle that should govern our decisions in this class of cases. In a case where no one knows what has happened, but where some decision is necessary, there can be no basis for an opinion which overrules the fact finding body. There is nothing here that plainly shows that the Appeal Board was wrong. In such a case, it must follow that a claimant who failed to meet the test by failing to substantiate his claim by evidence, or circumstances that may be properly taken into consideration, the claimant simply loses his case. He is not entitled to win because the personal inclination on the part of the courts is to be liberal towards people who come within the compensation laws of the State. No doubt this allowance to this widow will take care of her, in a measure, for the remainder of her life, and it is but natural that courts should have an inclination to make awards without too strict regard to law. All this may be highly commendable from the emotionable viewpoint, but the courts sit to administer justice according to the law which has been set up for the settlement of disputes. There should be no departure from the rules of law which requires that he who presents his case must establish it by a preponderance of the evidence and circumstances.
I am authorized to state that Judge Haymond joins in the views herein expressed.