Tweten v. North Dakota Workmen's Compensation Bureau

Christianson, J. This is an appeal from a judgment in a proceed *371 ing under tbe Workmen’s Compensation Act. Tbe proceeding was instituted by Sarah (Mrs. Melvin) Tweten, tbe surviving widow of Melvin Tweten, as plaintiff, to recover compensation pursuant to tbe provisions of tbe Workmen’s Compensation Act of tbis state. Session Laws 1919, chap. 162, as amended. Plaintiff’s husband (Melvin Tweten) died on May 26th, 1935, from lobar pneumonia. At tbe time of bis death be was in tbe employ of Wells county. Tbe plaintiff duly presented a claim to tbe Workmen’s Compensation Bureau alleging that her said husband bad contracted said disease in tbe course of bis employment, on or about May 17th, 1935. Tbe claim was rejected by tbe Workmen’s Compensation Bureau on tbe ground that “tbe alleged disability was due to disease not proximately caused by tbe deceased’s employment.” Plaintiff thereupon duly appealed to tbe district court from tbe decision of tbe Bureau. "Upon tbe bearing in tbe district court, both tbe plaintiff and the Workmen’s Compensation Bureau introduced evidence of several witnesses. Tbe district court rendered judgment in favor of tbe plaintiff, and tbe Workmen’s Compensation Bureau has appealed to tbis court, and demanded a trial anew. Tbe deceased, Melvin Tweten, was a World War veteran, and bad received injuries from gas during bis service in tbe war. He was employed on a work relief project in Wells county from on or- about May 2d, 1935, until be ceased work on May 17th, 1935. His work consisted of making repairs in buildings on tbe Pair Grounds — in repairing and constructing fences, and planting trees. The evidence shows that tbe weather was cold and damp, with considerable rain. Prom tbe 1st to tbe 17th of May tbe temperature ranged from twenty-nine degrees to sixty-five degrees, with a variation in temperature of as much as twenty-seven degrees in a day. There were eighteen cloudy days during tbe month of May — eleven days partly cloudy and only two clear days. Tbe rainfall in that vicinity during tbe month aggregated some 2.44 inches. Tbe evidence discloses that on at least one day between May 7th and May 9th, Tweten, in performing bis work, was required to crawl under a certain bowery which was being raised; that tbe ground was cold, wet and icy; that on May 11th, in repairing a fence, be was required to remain for a considerable period of time in a cold drizzling rain, as a result of which be became “soaked;” that *372 between May 11th and May 17th he was engaged in planting trees, and that in planting them he would kneel on the ground and utilize his hands in setting and packing the wet dirt around the trees. A few days before May 17th, Tweten developed a cold and his wife took him to one Dr. McKeague for treatment. On the morning of May 17th Tweten complained that he was not feeling well, but nevertheless he went to work. One of his fellow workers testified that on the morning of May 17th, about 10 o’clock, he saw Tweten sit down upon a stone and attempt to roll a cigarette, and that sometime thereafter Tweten was discovered lying prostrate upon the cold, wet ground. His wife, who was apprehensive about his condition, came and found Tweten in this condition and took him home; Dr. McKeague was called and found Tweten with a high fever, but did not diagnose his ailment as pneumonia until the following day, namely, May 18th. Tweten died from lobar pneumonia on May 26th. It is the contention of the appellant that the evidence fails to establish that the disease from which Tweten died was proximately caused by his employment. The Workmen’s Compensation Act provides: “ ‘Injury’ means only an injury arising in the course of employment, including an injury caused by the wilful act of a third person directed against an employee because of his employment, but shall not include injuries caused by the employee’s wilful intention to injure himself or to injure another, or by his voluntary intoxication. The term ‘injury’ includes in addition to any injury by accident, any disease approximately caused by the employment. If the employer claims an exemption or forfeiture under this section, the burden of proof shall be upon him.” Laws 1935, chap. 286, § 1. Upon the trial in the district court the plaintiff called, among other witnesses, one Dr. McKeague, the physician who attended Melvin Tweten in his last illness, and who, also, had treated him shortly before he became ill with pneumonia. Dr. McKeague testified that in his opinion the exposure to which Melvin Tweten had been subjected in the course of his employment contributed “more to his pneumonia than anything else.” According to his testimony, the disease from which Melvin Tweten died was proximately caused by the employment. The Workmen’s Compensation Bureau called two doctors who expressed it as their views that the disease was not proximately caused *373 by tbe employment. These doctors, however, did testify that exposure to cold and inclement weather frequently was a contributing cause of pneumonia. The trial court concluded that Tweten’s fatal illness was contracted by, and resulted from, the exposure to which he had been subjected during his employment. In other words, the trial court was of the view that the preponderance of the evidence established that plaintiff’s death resulted from a disease caused by the employment. There is uncertainty and conflict among the medical experts as to the period of incubation of lobar pneumonia. They seem agreed, however, that exposure to cold and wet weather frequently is an active agent in bringing on pneumonia, and that persons suffering with cold or flu, or persons whose resistance is otherwise lowered, are more prone to contract pneumonia under circumstances of exposure than persons who are strong and robust. In the very nature of things there might in many cases be considerable difficulty in proving that a person contracted a disease, such as pneumonia, in the course of his employment and that the disease was “approximately caused by the employment.” It is clear that ordinarily it would be more difficult to prove that a certain disease was proximately caused by the employment than to prove that a physical injury, such as a broken arm or leg, was sustained in the course of the employment. The latter may ordinarily be ■established by direct proof; but generally, if not always, the fact that a certain disease was proximately caused by the employment would have to be established by circumstantial evidence. However, the fact that proof may be difficult is no reason for denying relief where an injury has been sustained as a result of disease proximately caused by the employment, where that fact is established by evidence of sufficient probative force; and the reports of adjudicated cases show that, in many instances, recovery has been awarded under Workmen’s Com■pensation Acts for disease (including pneumonia) “approximately caused by the employment.” Ann. Cas. 1918B, note p. 328; note in 20 A.L.R. p. 66. Yellow Cab Co. v. Industrial Commission, 210 Wis. 460, 246 N. W. 689. .The plaintiff has made cross assignments of error and asks that this court review the allowances made by the trial court for attorneys’ fees and the compensation of Dr. McKeague, an expert witness. The trial court made an allowance of $225 for attorneys’ fees for plaintiff’s at *374 torney and $35 for expenses; and made an allowance of $10 to Dr. McKeague, in addition to the regular witness fee and mileage. It is contended by plaintiff’s counsel that these allowances are inadequate and should be increased. We have given the matter careful consideration and have reached the conclusion that we cannot interfere with the allowances made by the trial court. The statute (Laws 1919, chap. 162, § 17, as amended by Laws 1935, chap. 286) provides that when the district court on an appeal from a decision of the Workmen’s Compensation Bureau renders judgment in favor of the claimant: “The cost of such proceedings, including a reasonable attorney’s fee to the claimant’s attorney to be fixed by the trial judge, shall be taxed against the Bureau, which fee shall cover'and constitute the entire remuneration for the claimant’s attorney for all services in connection with such appeal, it being the intention to relieve the claimant of all expense for attorney fees. “Either party shall have the right to prosecute error as in the ordinary civil cases, and appeals to the Supreme Court in such cases shall be triable de novo.” It will be noted that the statute vests the trial court with power to “fix” the amount of a “reasonable attorney’s fee.” What is a reasonable attorney’s fee in any given proceeding is a matter primarily for the trial court to determine. That determination involves a consideration of facts peculiarly within the knowledge of the trial court. The question is one on which there may be differences of opinion. Obviously the statute vests in the trial court discretionary powers, and the decision of the trial court will not be disturbed on appeal unless it is clearly wrong. Upon the record here we cannot say that the allowances made by the trial court for attorneys’ fees and expenses are inadequate or that any valid reason exists for interference by this court with the determination of the trial court. So far as the assignment predicated upon the allowance of compensation to Dr. McKeague as an expert witness is concerned, we likewise find no reason for interference. Our laws make no provision for payment of a fee to an expert witness other than, or in addition to, the fees allowed to a witness generally. Dr. McKeague treated the deceased. He testified to facts that had come to his attention and knowl *375 edge as such attending physician. The views which he gave as an expert were incidental and supplementary to his testimony as to facts that had come to his attention in the particular case. Whether a trial court, in a proceeding under the Workmen’s Compensation Act, may or may not make an allowance to a witness in addition to the witness fees allowed to witnesses generally we need not determine here. Assuming without deciding that the trial court may make such allowance, we find no ground under the facts here for holding that the court erred in making too small an allowance to Dr. McKeague. As the defendants make no complaint of the allowance that was made, we do not consider whether the allowance should not have been made. The judgment appealed from is affirmed. Nuessle, Ch. J., and Morris and Burr, JJ., concur. Burke, J., did not participate.