Hinrichs v. Davenport Locomotive Works

Supreme Court of Iowa

Hinrichs v. Davenport Locomotive Works

214 N.W. 585, 203 Iowa 1395, 1927 Iowa Sup. LEXIS 402

CourtSupreme Court of Iowa

DecidedJuly 1, 1927

StatusPublished

Cited by28 cases

This text of 214 N.W. 585 (Hinrichs v. Davenport Locomotive Works) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hinrichs v. Davenport Locomotive Works, 214 N.W. 585, 203 Iowa 1395, 1927 Iowa Sup. LEXIS 402 (iowa 1927).

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Opinion

Stevens, J.

I. While claimant was engaged in chipping steel with an air hammer, a piece flew off and hit him in the left eye, causing a slight cut or injury, which, it is claimed, caused a cataract to form, resulting in a total loss of sight in that eye.

Three propositions are argued by appellant:' (a) That no causal connection between the injury and the disability was proven; (b) that the action is barred by the statute of limitations; and (c) that the commissioner erred in permitting appellee to introduce in evidence unsworn testimony without having given the notice required by Section 1447 of the Code of 1924.

*1397 *1396 Causal connection was found by the committee on arbitration, the industrial commissioner, and the district court. The evidence shows that the injury complained of was received *1397 March 28, 1923; that appellee immediately consulted the company doctor, who examined the eye, and treated and bandaged it. Appellee further testified that he had always suffered pain in the left eye since the accident; that, about three or four months thereafter, his sight failed, and that there was always some object in front of his eyes;, that, about three months previous to December 10, 1925, his left eye became inflamed, and that he consulted Dr. Hofmann, the company specialist, and an expert on diseases of the eye, in Moline, Illinois; that at that time he had lost the sight of his eye, and it was ascertained by the examination that he had a cataract, which may have been caused by the injury. Dr. Hofmann testified, on cross-examination, that, when he examined appellee in 1923, appellee had iritis. When his deposition was taken later, Dr. Hofmann testified that he did not find iritic .glaucoma when he examined appellee in 1923, and not until he examined him in October, 1925. This discrepancy is sought to be explained by Dr. Hofmann.

There is considerable discrepancy in the testimony of the expert witnesses, but all agree that a cataract might result from an injury to the eye. Dr. Hofmann was firm in his opinion that the injury had nothing to do with the cataract and the consequent blindness. Some of thé experts emphasize the fact that appellee’s right eye is normal, and say that this would not ordinarily be true, under other circumstances. At least one of the. expert witnesses testified that a cataract may result from an injury within three years, and that, if iritis is due to natural causes, and not to an injury, both eyes will be affected. The testimony of appellee that he suffered constant pain in his eye from the time of the injury must be given considerable jveight on the issue of causal connection. While there is disagreement in the testimony of the expert witnesses, it was peculiarly the province of the industrial commissioner to accept the testimony of such of these witnesses as seemed to him most consistent with all the testimony, and of the greater credibility. There is sufficient evidence in' the record to sustain the inference drawn by the industrial commissioner that the loss of sight in the left eye was due directly or indirectly to the injury of which he complains. It is not material that this court might, independent of *1398 the conclusion of the1 commissioner,- arrive at a different, result.

- It is true that the commissioner stated-that, as he .viewed the faqts, the issue, was close; but his finding, if based upon competent evidence, -will not-be disturbed on appeal. Pace v. Appanoose County, 184 Iowa 498; O'Neill v. Sioux City Term. R. Co., 193 Iowa 41; Herbig v. Walton Auto Co,, 191 Iowa 394; Flint v. City of Eldon, 191 Iowa 845.

■ II. Prior-to the enactment of Section 1386,-Code of 1924, by the fortieth general .assembly (extra session.)-, there was no statute'of limitations applicable to-'claims arising, under ■ the .Workmen’s Compensation Law. .--The present . . . , _ ... statute limits the time'Withm which original pro- . . . ... ceedmgs .may be commenced to two-, years - after -date of the injury causing-the disability. More than two years ¿lapsed thereafter before this action was commenced. ' The question, therefore,: is- as to -the. applicability of Section 1386 thereto.- • There is nothing in the specific language of the statute to indicate that it was the intention of the legislature that it should be given retroactive effect, nor do we-.find., anything therein from which'such intention may-be implied. It is-thé contention of appellant that less than two years had expired from the date of the accident when the statute went into effect,- and that a reasonable time,.therefore-, existed -within .-which-to commence'the same. The-authority of the legislature to make the statute applicable to- the present controversy is, of course, conceded. It had full- power, as stated,-to give it retroactive effect. ■ The rule apparently of -almost universal application is,, however, that a statute of limitations will be given retroactive effect only when it appears by express -provision: or. , necessary implication that such was the legislative'intent. Thoeni v. City of Dubuque, 115 Iowa 482; Succession of Serralles v. Esbri, 200 U. S. 103 (50 L. Ed. 391); Walker v. People ex rel. Raymond, 202 Ill. 34 (66 N. E. 827); State v. Mines, 38 W. Va. 125 (18 S. E. 470); Curtis v. Boquillas Land & Cattle Co., 9 Ariz. 62 (76 Pac. 612); Friedmann v. McGowan, 1 Penn. (Del.) 436 (42 Atl. 723); Walker v. Burgess, 44 W. Va. 399 (30 S. E. 99); Fullerton-Krueger Lbr. Co. v. Northern Pac. R. Co., 266 U. S. 435 (69 L. Ed. 367). Section 1386 is not,:-therefore; applicable to the present Controversy. '

*1399 *1398 III. -Strict rules of evidence are not to be applied in proi *1399 ceedings before the industrial commissioner. We have held that ex-párte affidavits are admissible,' but that the opposite party should be given the right, upon request, to cross-examine the witness. The industrial commissiojner permitted appellee ,tq introduce in evi_ ¿ence a. letter signed, by Dr. W., W. Pearson, of Des Moines, stating.that he had made an examination of him, and that in his opinion the cataract was the result of an injury to the eye. The objection offered was that the. letter was incompetent, immaterial, and irrelevant. No request was made for cross-examination o'f the witness, nor was the objection based upon the provision of the statute as to the giving of notice. It may well be doubted whether notice is necessary to the introduction of rebuttal evidence." We aré of the opinion that the letter was not admissible, and that it should have been given ho consideration by' the commissioner. This holding does not, however, necessarily entitle 'appellant to' a reversal and a remand of' the case.

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Stevens, J.

I. While claimant was engaged in chipping steel with an air hammer, a piece flew off and hit him in the left eye, causing a slight cut or injury, which, it is claimed, caused a cataract to form, resulting in a total loss of sight in that eye.

Three propositions are argued by appellant:' (a) That no causal connection between the injury and the disability was proven; (b) that the action is barred by the statute of limitations; and (c) that the commissioner erred in permitting appellee to introduce in evidence unsworn testimony without having given the notice required by Section 1447 of the Code of 1924.

*1397 *1396 Causal connection was found by the committee on arbitration, the industrial commissioner, and the district court. The evidence shows that the injury complained of was received *1397 March 28, 1923; that appellee immediately consulted the company doctor, who examined the eye, and treated and bandaged it. Appellee further testified that he had always suffered pain in the left eye since the accident; that, about three or four months thereafter, his sight failed, and that there was always some object in front of his eyes;, that, about three months previous to December 10, 1925, his left eye became inflamed, and that he consulted Dr. Hofmann, the company specialist, and an expert on diseases of the eye, in Moline, Illinois; that at that time he had lost the sight of his eye, and it was ascertained by the examination that he had a cataract, which may have been caused by the injury. Dr. Hofmann testified, on cross-examination, that, when he examined appellee in 1923, appellee had iritis. When his deposition was taken later, Dr. Hofmann testified that he did not find iritic .glaucoma when he examined appellee in 1923, and not until he examined him in October, 1925. This discrepancy is sought to be explained by Dr. Hofmann.

There is considerable discrepancy in the testimony of the expert witnesses, but all agree that a cataract might result from an injury to the eye. Dr. Hofmann was firm in his opinion that the injury had nothing to do with the cataract and the consequent blindness. Some of thé experts emphasize the fact that appellee’s right eye is normal, and say that this would not ordinarily be true, under other circumstances. At least one of the. expert witnesses testified that a cataract may result from an injury within three years, and that, if iritis is due to natural causes, and not to an injury, both eyes will be affected. The testimony of appellee that he suffered constant pain in his eye from the time of the injury must be given considerable jveight on the issue of causal connection. While there is disagreement in the testimony of the expert witnesses, it was peculiarly the province of the industrial commissioner to accept the testimony of such of these witnesses as seemed to him most consistent with all the testimony, and of the greater credibility. There is sufficient evidence in' the record to sustain the inference drawn by the industrial commissioner that the loss of sight in the left eye was due directly or indirectly to the injury of which he complains. It is not material that this court might, independent of *1398 the conclusion of the1 commissioner,- arrive at a different, result.

- It is true that the commissioner stated-that, as he .viewed the faqts, the issue, was close; but his finding, if based upon competent evidence, -will not-be disturbed on appeal. Pace v. Appanoose County, 184 Iowa 498; O'Neill v. Sioux City Term. R. Co., 193 Iowa 41; Herbig v. Walton Auto Co,, 191 Iowa 394; Flint v. City of Eldon, 191 Iowa 845.

■ II. Prior-to the enactment of Section 1386,-Code of 1924, by the fortieth general .assembly (extra session.)-, there was no statute'of limitations applicable to-'claims arising, under ■ the .Workmen’s Compensation Law. .--The present . . . , _ ... statute limits the time'Withm which original pro- . . . ... ceedmgs .may be commenced to two-, years - after -date of the injury causing-the disability. More than two years ¿lapsed thereafter before this action was commenced. ' The question, therefore,: is- as to -the. applicability of Section 1386 thereto.- • There is nothing in the specific language of the statute to indicate that it was the intention of the legislature that it should be given retroactive effect, nor do we-.find., anything therein from which'such intention may-be implied. It is-thé contention of appellant that less than two years had expired from the date of the accident when the statute went into effect,- and that a reasonable time,.therefore-, existed -within .-which-to commence'the same. The-authority of the legislature to make the statute applicable to- the present controversy is, of course, conceded. It had full- power, as stated,-to give it retroactive effect. ■ The rule apparently of -almost universal application is,, however, that a statute of limitations will be given retroactive effect only when it appears by express -provision: or. , necessary implication that such was the legislative'intent. Thoeni v. City of Dubuque, 115 Iowa 482; Succession of Serralles v. Esbri, 200 U. S. 103 (50 L. Ed. 391); Walker v. People ex rel. Raymond, 202 Ill. 34 (66 N. E. 827); State v. Mines, 38 W. Va. 125 (18 S. E. 470); Curtis v. Boquillas Land & Cattle Co., 9 Ariz. 62 (76 Pac. 612); Friedmann v. McGowan, 1 Penn. (Del.) 436 (42 Atl. 723); Walker v. Burgess, 44 W. Va. 399 (30 S. E. 99); Fullerton-Krueger Lbr. Co. v. Northern Pac. R. Co., 266 U. S. 435 (69 L. Ed. 367). Section 1386 is not,:-therefore; applicable to the present Controversy. '

*1399 *1398 III. -Strict rules of evidence are not to be applied in proi *1399 ceedings before the industrial commissioner. We have held that ex-párte affidavits are admissible,' but that the opposite party should be given the right, upon request, to cross-examine the witness. The industrial commissiojner permitted appellee ,tq introduce in evi_ ¿ence a. letter signed, by Dr. W., W. Pearson, of Des Moines, stating.that he had made an examination of him, and that in his opinion the cataract was the result of an injury to the eye. The objection offered was that the. letter was incompetent, immaterial, and irrelevant. No request was made for cross-examination o'f the witness, nor was the objection based upon the provision of the statute as to the giving of notice. It may well be doubted whether notice is necessary to the introduction of rebuttal evidence." We aré of the opinion that the letter was not admissible, and that it should have been given ho consideration by' the commissioner. This holding does not, however, necessarily entitle 'appellant to' a reversal and a remand of' the case. The letter was admitted by the commissionér, as stated by him, for what it was worth. In arriving at his conclusion, the commissioner gave considerablé weight to the printed record and the' •finding of the'arbitration' committee which heard' the testimony. It may r’eadily be conceded that 'the issue is a narrow one, and that the evidence is not very conclusive either way. There is sufficient competént evidence, however, to,' in our opinion, fairly justify the inferences drawn therefrom by the com-' missioner. '

The judgment' of the district court is affirmed.'&emdash;Affirmed.

, Evans, C. J„. and F avíele,. Yermilion, and Kindig, . JJ., concur. ,..

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