Moffett v. Bozeman Canning Co.

I dissent from that portion of the the opinion of the court wherein it is held that the circumstantial evidence adduced on the hearing is sufficient to sustain the judgment of the trial court. I concur in the statements in the opinion holding that the so-called opinions of the doctors are too speculative and conjectural to form the basis of findings.

If, under the facts in this case, owing to the lack of knowledge, the opinions of the doctors to whom the essential facts were submitted in hypothetical questions are unworthy of consideration, how can a court draw a conclusion from these same facts which is of superior weight to that of the doctors? I think the conclusion drawn by the court from the facts is based entirely on speculation and conjecture.

True, "the solution of any issue in a civil case may rest entirely upon circumstantial evidence. (Culbertson v. Hill,87 Mo. 553.) All that is required is that the evidence shall produce moral certainty in an unprejudiced mind. (Rev. Codes, [1907] sec. 7856.) In other words, when it furnishes support for the plaintiff's theory of the case, and thus tends to exclude any other theory, it is sufficient to sustain a verdict or decision. (Shaw v. New Year Gold Mines Co., 31 Mont. 138,77 P. 515; Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 P. 243.)" (Gilmore v. Ostronich,48 Mont. 305, 137 P. 378, 379.) *Page 362

The use of the word "tends" does not contemplate conjecture. It contemplates the testimony has the tendency to establish the theory, which will support claimant's case, and not some other theory inconsistent therewith. If the conclusion to be reached from the testimony is equally consonant with some theory inconsistent with the theory of claimant's case, then the circumstantial evidence does not tend to prove his case. (Shaw v. New Year Gold Mines Co., supra.) Any inference drawn from such testimony, however shrewd, is still in the realm of speculation.

Claimant suffered an industrial accident, resulting in a traumatic condition, prior to which he was a strong, healthy man. Soon after this accident he developed either paralysis agitans or Parkinsonian syndrome, the cause of which is unknown to medical science. The theoretical causes are trauma, infection and shock. The claimant suffered a trauma at the time of the accident.

The majority opinion states, in effect, that it was not shown that there was any infection present. The record discloses that at the time claimant, following his injury, presented himself to the doctor for treatment, he complained of an urethral discharge. The doctor in attendance at that time testified that he made a slide of this discharge, and from a microscopic examination found "conococcus" germs present. He prescribed medicines which are used for the treatment of cases of gonorrhea. A search of dictionaries, both medical and otherwise, fails to reveal any germ known by the name "conococcus," or any such word. Apparently in the preparation of the record, inadvertently, in the spelling of the name of the germ, the first letter of the name of the germ testified to was changed from "g" to "c." "Gonococcus is the name applied to the "bacterial coccus organism of gonorrhea." (Dorland's Medical Dictionary.) An infectious disease "is one caused by parasites such as bacteria," etc. (Id.) The error is clearly typographical.

The opinion of the court declares that the evidence was insufficient to establish the presence of infection. To my mind, *Page 363 if the testimony of the doctor is to be believed, the presence of an infection is clearly established. There being, therefore, present two theoretical causes, either of which may cause the malady of which claimant is suffering, the testimony tends equally to support either of these theories, one theory being favorable to claimant, the other not. Therefore any conclusion from the testimony that the theoretical cause of the disability was trauma is speculative and conjectural.

Furthermore, most courts hold that the showing of an industrial accident, following which some disability arises not shown to have any connection with the injury suffered at the time of the accident, is insufficient to sustain the burden imposed on the claimant to prove that the industrial accident was the proximate cause of the disability. (State ex rel. JohnsonHardware Co. v. District Court, 145 Minn. 444, 177 N.W. 644;Phillips v. Okey, 111 Kan. 732, 207 P. 1106; Kade v.Greenhut Co., 193 A.D. 862, 185 N.Y. Supp. 9; Donovan v.Alliance Elec. Co., 195 A.D. 678, 186 N.Y. Supp. 813;Shaw's Case, 126 Me. 572, 140 A. 370; Dehn v. Kitchen,54 N.D. 199, 209 N.W. 364; Edge v. City of Pierre, (S.D.)239 N.W. 191.)

In my judgment, there being no evidence in the record, either direct or circumstantial, which was within the recognized principles of the law of evidence sufficient to justify the conclusion reached by the trial court, the cause should be reversed.

Rehearing denied November 21, 1933. *Page 364