Alspaugh v. Mountain States Mut. Cas. Co.

• Decision Date: 10 July 1959
• Docket Number: No. 6448,6448
• Citation: 1959 NMSC 57,66 N.M. 126,343 P.2d 697
• Parties: Inez D. ALSPAUGH, Claimant-Appellee, v. MOUNTAIN STATES MUTUAL CASUALTY CO., Insurer-Appellant.
• Court: New Mexico Supreme Court

Page 697

343 P.2d 697

66 N.M. 126

Inez D. ALSPAUGH, Claimant-Appellee, v. MOUNTAIN STATES MUTUAL CASUALTY CO., Insurer-Appellant.

No. 6448.

Supreme Court of New Mexico.

July 10, 1959.

Rehearing Denied Sept. 16, 1959.

W. C. Whatley, Las Cruces, for appellant.

Bigbee & Stephenson, Santiago E. Campos, Santa Fe, for appellee.

CARMODY, Justice.

This is an action for workmen's compensation benefits. The claimant is the widow of Sidney G. Alspaugh, who allegedly died as a result of a heart attack arising out of and in the course of his employment by the New Mexico State Highway Department.

The insurer denied liability, and on the issues framed, the cause was tried to a jury. The jury found for claimant; judgment was entered accordingly, and the insurer seeks a review of the judgment by this appeal.

Appellant first contends there was a failure on the part of the workman, and the claimant as well, to give written notice to the employer of the accidental injury pursuant to the provisions of Sec. 59-10-13, 1953 Comp. The contention is not well taken. The question of notice was not raised in the trial court and since failure to give notice does not present a jurisdictional question, Clower v. Grossman, 1951, 55 N.M. 546, 237 P.2d 353, the question cannot be raised here for the first time. State ex rel. Bliss v. Potter Co., 1957, 63 N.M. 101, 314 A.2d 390. Notice and claim are not synonymous. It is to be observed, however, that at the close of claimant's case, appellant, by motion for an instructed verdict, questioned the timeliness of the claim for compensation. In this respect, the workman died July 30, 1956, and the claim (complaint) for compensation was filed by his widow July 25, 1957; hence, the claim was timely filed under the provisions of Sec. 59-10-13.

The final point urged challenges the sufficiency of the evidence. Summarizing the evidence, the workman was employed by the State Highway Department in November 1953 as an engineer. He was the project engineer on an interurban project at Alamogordo in 1955, and later on a project at Holloman Air Force Base. Prior thereto, he had enjoyed good health although he suffered from hypertension and had been discharged from military service in World War II by reason of such ailment and received a pension. About December 7, 1955, he suffered a heart attack while employed at Alamogordo. There is no question but what the work in which he was engaged, requiring general supervision of the work, was of a type which would require him to work under stress and strain and perhaps make him nervously upset. He had to spend long hours, and even Saturdays and Sundays, in order to complete the project on schedule, and as the Alamogordo project neared completion he appeared to be in an alarming condition, according to his wife.

Following the heart attack in December, he apparently suffered a second heart attack in April 1956, and within a few days thereafter was unable to work at all. His wife took him to the Veterans Hospital in Albuquerque where he remained for more than a month, but did not appear to make any improvement and was moved to St. Joseph's Hospital in Albuquerque. After remaining there for about a week, his wife took him to her home in Oklahoma where he was hospitalized for a few days and then transferred to the Veterans Hospital in Oklahoma City where he died on July 30, 1956, at the age of forty-nine years.

The death certificate, which is the only definite evidence of the immediate cause of death, stated that the same was: 'Hypertensive Arteriosclerotic Heart Disease Generalized' and other significant conditions contributing to death, 'Cerebral Atrophy.' Certain of the above words need be defined, as follows:

Hypertensive: 'Characterized by increased blood pressure.'

Arteriosclerosis: 'Thickening of the walls of arteries, occurring mostly during old age. There is usually inflammation or degeneration of the arterial walls.'

Generalize: 'To make general as a disease.'

Gould's Medical Dictionary, Scott, Second Edition; Medical Dictionary for Lawyers, Malloy.

Two doctors testified on behalf of the claimant, one of whom saw the deceased in Alamogordo at the time of his first attack. The other card for him while he was in St. Joseph's Hospital in Albuquerque from June 11th until June 19, 1956. Both of these doctors testified generally with respect to the cause and effect of heart attacks and the effect of a prior condition of hypertension thereon. These same doctors also testified, in effect, that the deceased might have suffered a heart attack from the conditions of his employment and that the heart attack might have been the cause of death, and also pointed out that when a person has a heart attack, it is not unusual for the person to have another, and that about one-third of the people who experience heart attacks succumb to the first one, another one-third to the second attack, and usually the balance to the third attack. However, neither of these doctors attended or saw the deceased within six weeks of his death, and beyond the foregoing expressed no opinion other than possibilities as to the cause of his death. Nothing further appears in the record supporting the claimant's theory of the cause of death beyond the death certificate mentioned heretofore. As indicated, we do not understand the language of the certificate to indicate death resulted from a heart attack or accident suffered some three months or more previously, or from complications resulting therefrom.

During the lifetime of the decedent, he gave no notice and made no claim for benefits under the Workmen's Compensation Act, although he did submit claims to the Occidental Life Insurance Company through the Highway Department under a general group accident and sickness policy. These claims, over the signature of the deceased, stated that the disability was not due to claimant's occupation. So also the two doctors who cared for him during this period and who testified, certified to the Occidental Life Insurance Company that the injury or sickness did not arise out of his occupation.

Subsequent to the death, the claimant in this case obtained a widow's pension from the United States government and also claimed and received a death benefit under the Occidental group policy.

It would appear to be well settled law in New Mexico that 'it is not necessary that a workman be subjected to an unusual or extraordinary condition, not usual to his employment, for an injury sustained to be termed an accidental one under our law.' Sanchez v. Board of County Commissioners, 1957, 63 N.M. 85, 313 P.2d 1055, 1058; Gilbert v. E. B. Law & Son, Inc., 1955, 60 N.M. 101, 287 P.2d 992; Webb v. New Mexico Pub. Co., 1943, 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002.

Be that as it may, the essential question here is whether there was a causal relationship established between the accident and the injury and between the injury and death.

While recognizing that an accidental death may result from exertion in the performance of the normal activities of one's labor, yet to give it that character there must appear in the evidence some proof rising above the rank of mere surmise or speculation that such exertion was put forth, with particularity as to time, place and circumstance. The relation between the effort and the proof of its result must be positive, direct, immediate and easily identifiable, and not of a kind that can be found in the normal progress of every coronary involvement. Under the facts in Teal v. Potash Co. of America, 1956, 60 N.M. 409, 292 P.2d 99, 102, and in Sanchez v. Board of County Commissioners, supra, there was sufficient evidence of causal relation between the work done and the heart attack together with almost immediate death to support the award of compensation However, the difficulty in this case lies in the lack of an evidentiary showing of causal relationship between the injury (the heart attack) and the subsequent death more than three months later.

This court in Teal v. Potash Co. of America, supra, and in Sanchez v. Board of County Commissioners, supra, found, in effect, that the proximity in the time of death to the accident was sufficiently close to justify recovery. In the Sanchez case, there was competent medical evidence explaining the cause of death. In the Teal case, however, common experience and knowledge were substituted for medical evidence under the facts and circumstances there present. In the Teal case, the court stated as follows:

'But where, as here, there is a sequence of events in rapid order, such a brief hiatus of time between the exertion, followed by the quenching of thirst with refrigerated water and, then, sudden death, the natural experience of mankind suggests there likely is a causal connection between the strain and exhaustion, on the one hand, and the consequent death on the other.'

In the instant case, this sequence does not exist, and the 'natural experience of mankind' does not 'suggest the presence of a causal...