Bidnick v. Armour & Co.

The opinion of the court was delivered by Hopkins, J.: Defendant appeals from a judgment of $2,430 awarded plaintiff under the workmen’s compensation law, for damages resulting from an injury while in defendant’s employ. Plaintiff had worked for defendant many- years. On June 24, 1919, while [278] attempting to lift or overturn a barrel weighing 600 pounds, he suffered a hernia. He was treated by defendant’s surgeon and later sent by defendant to a hospital, where he was operated on by Doctor Johnson, defendant’s chief surgeon. While in the hospital, and about two weeks after the operation, his leg swelled to about an inch larger in circumference than its natural size, due to the damming back of the blood by a thrombosis or blood clot in the saphenous vein of the left leg. This condition, in common parlance, is known as a “milk-leg.” Plaintiff was in the hospital several weeks. Ten weeks after the operation, having returned to the company, he executed a release which furnishes the principal ground for controversy in this case. The release was executed on October 4, 1919,, recited the receipt of $17.50 “making in all, with the weekly payments heretofore received, the sum of $137.50, which sum of money I accept in full satisfaction of all claims, rights of action, etc.” It was signed by the plaintiff, as was also a statement to the effect that, in accepting the money, no reliance was placed on any statement made by defendants, its doctors, or any person connected with it. The defendant complains that plaintiff’s petition was insufficient; that there was no testimony that plaintiff’s “milk-leg” was the result of injury arising out of his employment; that the consideration of the release was not grossly inadequate; that plaintiff failed to prove mutual mistake; and that erroneous instructions were given. The petition contained the general allegations substantially as pleaded in cases'of this kind. It alleged “that the plaintiff was employed by defendant . . . working ... on large barrels . . . and while working . . . sustained serious and permanent personal injuries by accident arising out of and in the course of his employment . .. . while lifting and handling some heavy barrels, sustained a hernia necessitating a serious operation . . . which was performed by Dr. E. W. Johnson, the defendant’s regularly employed physician and surgeon; that plaintiff also sustained a phlegmasia alba dolens in his left leg, commonly known as a 'milk-leg,’ that, as a result of said injuries . . . plaintiff was totally incapacitated from performing work and labor for a period of ten weeks,” etc. While the petition might properly have been more definite and certain in some of its allegations, and perhaps the trial court would have so required had defendant filed a motion, or demurrer against [279] it, we think it was sufficient as against an objection to the introduction of testimony. Defendant contends that, if plaintiff sustained any injury in the course of his employment, it was the hernia, that the hernia was cured by the treatment and operation; that the “milk-leg” was caused entirely by the operation for hernia; that, therefore, the “milk-leg” was not an accident' arising in the course of plaintiff’s employment; and that plaintiff cannot recover. The defendant relies on the case of Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 437. In that case, however, it was said: “The evidence shows that the permanent character of his (plaintiff’s) incapacity is -actually the result, not of the injury received while working for the defendant, but of improper surgical treatment.” (p. 180.) In this case there is no claim that the “milk-leg” was caused by improper surgical treatment or malpractice. The injury itself is the basis of complaint. While a reasonable conclusion from the evidence was that the lifting of the heavy barrel caused the hernia, that the hernia necessitated the operation, as a result of which one of the veins of plaintiff’s leg was dammed or the flow of blood materially restricted, there was evidence “that the milk-leg could be caused by an injury.” In either case the original injury was the contributing cause, if not the direct cause of plaintiff’s condition. From the 600-pound barrel through the various stages to the “milk-leg,” each step was the natural inducement of the next. The result was plaintiff’s condition, from which he will be partially incapacitated, perhaps for life. On the proposition of the inadequacy of the settlement and mutual mistake, these questions were asked and answers returned by the jury: “1. Was .there a mutual mistake of fact on the part of both the plaintiff and defendant at the time of signing the release in question in this case as to whether the plaintiff has substantially recovered from his injuries or any complication growing out of them as one of the natural and probable results thereof? Answer. Yes. “2. Was the consideration for said release grossly inadequate? Answer. Yes. “3. If you answer question 1, ‘yes,’ did said mutual mistake of fact induce the parties to enter into the aforesaid release? Answer. Yes.” It would serve no good purpose to detail the evidence here. It was sufficient to support the findings of the jury and they will not be disturbed. [280] Defendant complains of an instruction to the effect that it was admitted by the defendant that plaintiff was injured while in its employ by reason of an accident arising out of and in course of his employment. The criticism would have had much more weight had the case been submitted to the jury for a general verdict. Special questions only were submitted to the jury. The instruction complained of cannot be said to have misled the jury in answering the questions submitted. The plaintiff contends that the undisputed evidence and admissions of counsel were sufficient in any event to justify the instructions. Under all the circumstances we cannot see that defendant was prejudiced. Tested by the rules laid down in numerous decisions of this court, Smith v. Kansas City, 102 Kan. 518, 171 Pac. 9; Miller v. Gas & Fuel Co., 108 Kan. 124, 193 Pac. 896; Crawn v. Packing Co., 111 Kan. 573, 207 Pac. 793; Parrott v. Railway Co., 111 Kan. 375, 207 Pac. 777; McCroskey v. Manufacturing Co., 112 Kan. 434, 211 Pac. 133; Rider v. Railway Co., 112 Kan. 765, 212 Pac. 678, the allegations of the pleadings and testimony were ample to sustain' the judgment. It is therefore affirmed.