Opinion
No. 40385.
February 25, 1957.
1. Workmen's compensation — findings of trier of facts — must be supported by substantial evidence.
The finding of the trier of facts, either in allowing or denying compensation claim, must be supported by substantial evidence.
2. Workmen's compensation — convulsions — evidence supported finding that employee's death was not caused or contributed to by his employment as line foreman.
In workmen's compensation proceeding by employee's widow against employer for death benefits as result of employee's death from convulsions, where there was substantial evidence both pro and con as to whether deceased's employment as line foreman aggravated and contributed to death, evidence was sufficient to support finding that deceased's death was not caused or contributed to by his employment.
3. Appeal — workmen's compensation — depositions — though not formally introduced in evidence would not be eliminated from record.
Where depositions of heart specialist were considered by attorney-referee, discussed in his opinion and depositions were dealt with in trial briefs by both sides that were submitted to attorney-referee, even though depositions had not been formally introduced in evidence, they would not be eliminated from the record.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Warren County; R.B. ANDERSON, Judge.
Travis Moore, Jackson, for appellant.
I. The depositions of Dr. William D. Stroud and Dr. Louis H. Sigler are not properly a part of the record, and the motion suggesting diminution of the record should be sustained.
II. Duties of employment which aggravate a pre-existing heart disease need only be a contributing factor and not the cause in order for death claim to be compensable.
III. The medical evidence and testimony established a causal relationship between the duties of employment and the death of Mr. Freeman.
IV. Workmen's Compensation Law should be given a broad and liberal construction, and doubtful cases should be resolved in favor of compensation.
V. This Court has the power and authority to reverse the adverse order of the Commission since there has been a showing by substantial proof that this is a compensable claim.
Collation of authorities: Avery Body Co. v. Hall, 224 Miss. 51, 79 So.2d 453; Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Dillon v. Gasoline Plant Constr. Corp., 222 Miss. 10, 75 So.2d 80; Dixie Pine Products Co. v. Dependents of Bryant, 228 Miss. 595, 89 So.2d 589; East v. Pigford Bros. Constr. Co., 219 Miss. 121, 68 So.2d 294; Federated Mutual Implement and Hardware Ins. Co. v. Spencer, 219 Miss. 68, 67 So.2d 878; Fischer v. Gloster Lumber Builders Supply Co. (Miss.), 57 So.2d 871; Guess v. Southeastern Utilities Service Co., 226 Miss. 637, 85 So.2d 173; Hardin's Bakeries v. Ranager, 217 Miss. 463, 64 So.2d 705; Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So.2d 645; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; International Paper Co. v. Handford, 223 Miss. 747, 78 So.2d 895; LaDew v. LaBorde, 216 Miss. 598, 63 So.2d 56; Laurel Daily Leader v. James, 224 Miss. 654, 80 So.2d 770; Mandle v. Kelly, 229 Miss. 327, 90 So.2d 645; Masonite Corp. v. Fields, 229 Miss. 524, 91 So.2d 282; McKenzie v. Gulf Hills Hotel, 221 Miss. 723, 74 So.2d 830; Miles Sons v. Myatt (Miss.), 61 So.2d 390; Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So.2d 793; Mutual Implement Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723; Pearl River Tung Co. v. Estate of Leslie John, 225 Miss. 303, 83 So.2d 95; Pearson v. Dixie Electric Power Assn., 219 Miss. 884, 70 So.2d 6; Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 74 So.2d 754; Retail Credit Co. v. Coleman, 227 Miss. 791, 86 So.2d 666; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Schilling v. Mississippi State Forestry Commission, 226 Miss. 858, 85 So.2d 562; Smith v. St Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; Southern Engineering Elec. Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Sunnyland Contracting Co. v. Davis, 221 Miss. 744, 74 So.2d 858; Tate v. Dr. Pepper Bottling Co., 220 Miss. 311, 70 So.2d 602; Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322, 78 So.2d 159; Verschleiser v. Joseph Stern Son, Inc., 229 N.Y. 192, 128 N.E. 126; Webster Constr. Co. v. Bates, 227 Miss. 207, 85 So.2d 795; Williams Bros. Co. v. McIntosh, 226 Miss. 553, 84 So.2d 692; Yellow Cab Co. v. West (Miss.), 83 So.2d 444; Horovitz, Current Trends in Workmen's Compensation, pp. 663-665; Larson's Workmen's Comp. Law, Sec. 12.20 p. 170.
Bethel Ferguson, A.M. Nelson, Green, Green Cheney, Jackson; Dent, Martin Ward, Vollor Thames, Vicksburg, for appellee.
I. No reversible error, because as a question of fact the attorney-referee, the Commission and the Circuit Court of Warren County have denied compensation. Barmore v. Vicksburg, S. P. Ry. Co., 85 Miss. 426, 38 So. 210; Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Dillon v. Gasoline Plant Constr. Corp., 222 Miss. 10, 75 So.2d 80; Dixie Pine Products Co. v. Dependents of Bryant, 228 Miss. 595, 89 So.2d 589; Fischer v. Gloster Lbr. Builders Supply Co. (Miss.), 57 So.2d 871; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Lawson v. Traxler Gravel Co., 229 Miss. 159, 90 So.2d 204; Malley v. Over The Top, Inc., 229 Miss. 347, 90 So.2d 687; Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So.2d 793; Morris v. Art's Army Store, 226 Miss. 881, 85 So.2d 581; Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 74 So.2d 754; Thompson v. State, 220 Miss. 200, 70 So.2d 341; Thornton v. Magnolia Textiles, Inc. (Miss.), 55 So.2d 172; Wallace v. Copiah County Lbr. Co., 223 Miss. 90, 77 So.2d 316; Webster Constr. Co. v. Bates, 227 Miss. 207, 85 So.2d 795; Williams Bros. Co. v. McIntosh, 226 Miss. 553, 84 So.2d 692; Willoughby v. Pope, 101 Miss. 808, 58 So. 705; Secs. 6998-04, 7064, Code 1942; 3 Am. Jur., Appeal and Error, Sec. 896 p. 458; Annos. 14 A.L.R. 359; 42 A.L.R. 1454; 96 A.L.R. 324; 136 A.L.R. 856; Vol. II, Larson's Workmen's Comp. Law, Sec. 8020 p. 319; 3 Schneider, Workmen's Compensation Text, Sec. 925 p. 501; Vol. XXV, Mississippi Law Journal, pp. 115-116; Vol. XXVII, Mississippi Law Journal, p. 53.
II. Denial of compensation essential under the record. Avery Body Co. v. Hall, 224 Miss. 51, 79 So.2d 453; Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507; Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Dillon v. Gasoline Plant Const. Corp., supra; East v. Pigford Bros. Constr. Co., 219 Miss. 121, 68 So.2d 294; Federated Mutual Implement and Hardware Ins. Co. v. Spencer, 219 Miss. 68, 67 So.2d 878; Gulf, M. N.R. Co. v. Sparkman, 180 Miss. 456, 177 So. 760; Hardin's Bakeries v. Ranager, 217 Miss. 463, 64 So.2d 705; Hoage v. Royal Indemnity Co., 90 F.2d 387; Illinois Central R. Co. v. Walker, 116 Miss. 431, 77 So. 191; Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So.2d 645; Interstate Company v. Jolly, 156 Miss. 199, 125 So. 406; Jones v. California Packing Corp. (Utah), 244 P.2d 640, 10 N.A.C.C.A. Law Journal 74; LaDew v. LaBorde, 216 Miss. 598, 63 So.2d 56; Lawson v. Traxler Gravel Co., supra; Liberty National Life Ins. Co. v. Tellis, 226 Ala. 283, 146 So. 616; Malley v. Over The Top, Inc., 229 Miss. 347, 90 So.2d 687; Mississippi Products v. Gordy, supra; Mutual Implement Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; Ohio Oil Co. v. Porter (Miss.), 82 So.2d 636; Pearl River Tung Co. v. Estate of Leslie John, 225 Miss. 303, 83 So.2d 95; Pearson v. Dixie Electric Power Assn., 219 Miss. 884, 70 So.2d 6; Railway Express Agency v. Hollingsworth, supra; Simpson v. Millsaps, 80 Miss. 239, 31 So. 912; Southern Engineering Elec. Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Sunnyland Contracting Co. v. Davis, 221 Miss. 744, 74 So.2d 858; Tate v. Dr. Pepper Bottling Co., 220 Miss. 311, 70 So.2d 602; Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322, 78 So.2d 159; Yazoo M.V.R. Co. v. Green, 167 Miss. 137, 147 So. 333; Yellow Cab Co. v. West (Miss.), 83 So.2d 444; Secs. 1741, 7064, Code 1942; 3 Am. Jur., Appeal and Error, Sec. 896 p. 458; 3 C.J.S., Angina Pectoris, p. 1073; Vol. II, Larson's Workmen's Comp. Law, Sec. 8020 p. 319; 4 Schneider on Workmen's Compensation, Sec. 1297 p. 485; Vol. XXV, Mississippi Law Journal, pp. 115-116; Vo. XXVII, Mississippi Law Journal, P. 53; 12 Law Society Journal of Massachusetts, p. 470; 2 N.A.C.C.A. Law Journal, p. 11; Webster's New International Dictionary (2nd Ed.), p. 101.
III. The depositions of Dr. Sigler and Dr. Stroud appropriately a part of the record.
(Hn 1) This in an appeal from the judgment of the Circuit Court of Warren County affirming the decision of the Workmen's Compensation Commission which had affirmed the decision of the attorney-referee, denying liability to the appellant, Mrs. Fannie Rankin Freeman, the widow and sole dependent of William Pat Freeman, deceased. The employee, William Pat Freeman, died on June 9, 1953, in the Lutheran Hospital at Vicksburg, Mississippi. The record contains the testimony of a number of lay witnesses and of one outstanding physician and surgeon and eight heart specialists as to the cause of the death of the employee, and as to whether or not his death as an employee of the appellee was caused or contributed to by the performance of his duties as a line foreman for the employer. The record consists of four large volumes and the briefs of counsel consists of 270 pages. In the reply brief of the appellant it is asserted, and we think erroneously so, that: "This Court has demonstrated on numerous occasions that where there is substantial testimony in support of an award, which has been denied by the Workmen's Compensation Commission, it will reverse the Workmen's Compensation Comission and award compensation benefits." The test that we have sought to apply has been not as to whether the claim is supported by substantial evidence, but rather whether or not the finding of the trier of facts, either in allowing or denying the claim, is supported by substantial evidence. We have reversed the Commission when we have determined this issue in the negative.
The case seems to have been briefed by the appellant somewhat upon the theory contained in the foregoing quotation. In the case of Reyer v. Pearl River Tung Co., et al., 219 Miss. 211, 68 So.2d 442, it was held that where evidence for compensation benefits was neither disputed nor contradicted in its material features and was not inherently improbable, such evidence should not be arbitrarily and capriciously rejected, but we do not feel that we are justified in holding that such was true as to the action of the attorney-referee, the Commission and the circuit court in the instant case.
In the recent case of Retail Credit Company v. Coleman, 227 Miss. 791, 86 So.2d 666, the Court held that the Workmen's Compensation Commission in a compensation proceeding could not disregard the uncontradicted and reasonable testimony of disinterested witnesses, but that nevertheless the burden of proof was on claimants to establish that the employee's death arose out of and in the course of his employment.
In the case of Williams Brothers Company v. McIntosh, 226 Miss. 553, 84 So.2d 692, the Court held that where, in a workmen's compensation proceeding, Commission's finding on disputed question of facts is supported by substantial evidence, circuit courts should not reverse Commission's judgment, and that the Supreme Court will not either. That case further held that where, in such a proceeding, the order of the attorney-referee and Commission denying compensation were against the overwhelming weight of the evidence and were not supported by substantial evidence, circuit court's reversal of cause and award of compensation was proper.
In the case of Cowart v. Pearl River Tung Co., et al., 218 Miss. 472, 67 So.2d 356, much discussed in the briefs, this Court reversed the finding of the attorney-referee, the Commission, and the judgment of the circuit court where the employee had died of a "massive cerebro-vascular accident" (explained in the testimony as a rupture of a blood vessel in the brain) while actually engaged about the work of her employment in picking up tung (oil) nuts under the trees in the tung orchard of the Pearl River Tung Company. The key point in that decision was that the "stooping and bending" of the employee, who had a pre-existing ailment known as high blood pressure, aggravated, accelerated, and contributed to the precipitation of the accident complained of. There was no dispute about the facts, and we reversed the finding of the attorney-referee and the Commission, and the judgment of the circuit court on the ground, as expressly pointed out in the opinion, that there was no substantial conflict in the medical testimony as to whether or not the stooping and bending by the employee in picking up the nuts from the ground had probably caused the blood to rush to the brain and precipitated the accident and consequent death. None of us think that that decision can be considered as an authority for the reversal of the instant case.
In the case at bar three doctors testified, including the regular doctor of the employee and the nonexpert heart specialist at the hospital who attended him during the period of approximately forty-five minutes immediately prior to his death after he had his seizure at the hospital, and Dr. Stevenson, a heart specialist of Jackson, testified the death of the employee was according to their best impression about the matter due to a possible dissecting aneurysm, which medical term was explained to mean a rupture of the aorta leading from the heart. If such was the cause of death, we do not understand from the testimony that it would be attributable to the work of the employee's employment. Dr. T.E. Wilson, a heart specialist of Jackson, was of the opinion that he died of angina pectoris. The majority of the nine doctors, eight of whom qualified as experts in the treatment of the heart, as aforesaid, were of the opinion that he had a pre-existing myocardial infarction, but at least four or five of these experts were of the opinion that the work of the employee as line foreman of appellee, Mississippi Power and Light Company, was not an aggravating or contributing cause to his death from the pre-existing heart ailment, whereas a majority of the experts thought that his death could probably have been, or actually was, aggravated and contributed to by the work of the employee in connection with his employment.
Dr. I.C. Knox, Sr. of Vicksburg, the attending physician of the employee at the time of his death, stated very frankly that he didn't know what caused the death, and that "no one else does." The employee arrived at the hospital, unassisted, after 8 o'clock a.m. after having stated to members of his crew that he was feeling better after having shortly prior thereto experienced some pain in his arms and a lump in his throat, but that since the lump and the pains were gone he had decided that it was unnecessary to enter the hospital and agreed to do so only on the insistence of a member of his crew; and it appears that while waiting to see the doctor, he was seized with pain in the pit of his stomach and, according to the doctor, suffered one convulsion after another until he died. The weather temperature was about 85 degrees, and notwithstanding the specifications of his worksheet as to his duties as line foreman, he had only been supervising from down on the ground some repair work on the lines the day before and the replacement of some transformers and fuses at two or three different places on the line on the morning of his death, while the members of his crew had been doing the actual work on the transformers and in the changing of fuses.
In the Cowart case, supra, the employee was doing the same work which she had been doing regularly prior to the day of her accident, but as pointed out in the opinion in that case, the accident was caused by the stooping and bending while picking up the nuts, and this action on her part was calculated, as it was on previous days, to aggravate and contribute to the accident by reason of the exertion required in stooping and bending over to pick up the tung oil nuts from the ground.
(Hn 2) However, we deem it unnecessary to discuss all the facts testified to as to the nature and character of the activities of the employee in the case at bar, since it is sufficient to say that even though there was substantial evidence both pro and con as to whether or not his employment aggravated and contributed to his death the attorney-referee and the Commission resolved the issue of fact against the claim instead of making an award. The only function left for us to perform is to decide as to whether or not there was substantial evidence sufficient to support their action and the judgment of the circuit court in the affirmance of the denial of the claim.
(Hn 3) The depositions of an outstanding heart specialist from Brooklyn, New York, and of one from Philadelphia, Pennsylvania, were taken, and were considered by the attorney-referee and discussed in his opinion and he treated the same as if they had been formerly introduced in evidence, although after the appellee had gone to considerable expense in obtaining these depositions, it omitted, perhaps inadvertently, to formally introduce them in evidence. Since these depositions were dealt with in the trial briefs on both sides that were submitted to the attorney-referee, and since he dealt with the depositions as a part of the record, we concluded that the motion filed here for the elimination of the said depositions from the record should be and the same was overruled.
We do not deem it necessary to review in detail the testimony of the several lay witnesses and of the medical witnesses, since we are of the opinion that it is sufficient to say that there was substantial evidence on which to deny the claim, even though there may have been substantial evidence to the contrary in support thereof.
The judgment of the attorney-referee, the Commission, and of the circuit court in denying the claim is therefore affirmed.
Affirmed.
Hall, Kyle, Arrington and Gillespie, JJ., concur.