Anderson v. Volz Const. Co.

• Decision Date: 07 January 1946
• Parties: ANDERSON v. VOLZ CONST. CO. et al.
• Court: Tennessee Supreme Court

191 S.W.2d 436

183 Tenn. 169

ANDERSON v. VOLZ CONST. CO. et al.

Supreme Court of Tennessee.

January 7, 1946

Appeal from Probate Court, Shelby County; Samuel O. Bates, Judge.

Proceeding under the Workmen's Compensation Act by Mary Anderson claimant, to recover compensation for the death of Allen Dan Anderson, employee, opposed by the Volz Construction Company employer, and the American Mutual Liability Insurance Company, insurer. From a judgment denying compensation claimant appeals.

Affirmed.

Eugene Madden and Winchester & Bearman, all of Memphis, for petitioner.

Albert G. Riley, of Memphis, for defendant.

GAILOR Justice.

In the Probate Court of Shelby County, under provisions of the Tennessee Workmen's Compensation Act, Code 1932, § 6851 et seq., Mary Anderson, as widow of Allen Dan Anderson, filed claim for his death against the defendant Volz Construction Company and its insurer, The American Mutual Liability Insurance Company.

On July 26, 1943, Dan Anderson was employed by the Volz Construction Company as a common laborer, digging manholes on construction work near the Millington Air Base in Shelby County. It was a hot summer day but there was nothing abnormal about the heat which was between 90 and 100 degrees Fahrenheit. The construction work consisted of a trench cut by machine, about 11 feet, 3 inches deep. In this trench a pipe was laid and every 300 feet it was necessary that a manhole be dug, which apparently was of the same depth as the trench but was enlarged from the width of the trench, some 18 inches, to a diameter of 6 feet. It was this circular enlargement which was made by hand labor. Deceased had dug one manhole and had been working steadily all day without complaint and without apparent or visible ill effect from the heat. Some time between three and four, as he neared the completion of this manhole, he had talked with his white foreman, and made no complaint. He had been instructed, after completing that manhole, to commence another which, on the plan, was to be dug in the middle of a black-top highway. He had marked off this manhole and chipped out some of the black-top when he dropped dead. So far as the record discloses, his death was instantaneous. No witness testified that he was alive after he fell to the ground. His clothing was, of course, wringing wet with perspiration, but it is in evidence that this was neither unusual nor abnormal under the circumstances.

His body was taken to an undertaker's and later embalmed. Two or three days after the death, an autopsy was performed by Dr. Moss, pathologist at St. Joseph's Hospital, and the autopsy was viewed by Dr. Pearce, representing the Insurance Company, and Dr. Johnson, a colored physician, representing the widow. Dr. Moss and Dr. Pearce were called to testify by the defendant, but Dr. Johnson was not called to testify by the petitioner, and his failure to testify is unexplained.

The autopsy, according to Dr. Moss who performed it, and Dr. Pearce who witnessed it, revealed an anomalous right artery, which ran in an abnormal course, 'upward and back,' between the aorta and the pulmonary artery, so that by this abnormality which was congenital, this right coronary artery was in a position to be compressed or pinched between the root of the aorta and the root of the pulmonary artery. In the opinion of these doctors, such compressing or pinching off of the right coronary artery had impeded the flow of blood to the heart to such extent as to cause sudden death. The heart of the deceased was found to be greatly enlarged, weighing 550 grams, as compared with a normal of 300 grams. The heart enlargement had been gradual over a long period of time and there was some arteriosclerosis.

Drs. McMahon and Polk called to testify on behalf of the petitioner, could not testify as to the cause of death. They were asked hypothetical questions on which they testified that 'sun stroke, heat exhaustion, or heat prostration' could have caused the death under the facts disclosed by the hypothetical questions.

The trial judge found that death occurred in the course of the employment but did not arise out of the employment. Crediting the evidence of the two physicians introduced by the defendant, the learned trial judge found:

'* * * there must be apparent to the rational mind a causal connection between the condition under which the work is required to be performed and the resulting injury. The evidence in this case affords no such connection between the digging of the manholes by the deceased workman and his sudden death. It, therefore, results that this is not a compensable case under the Tennessee Workmen's Compensation Act.'

To recover, the petitioner had to prove by a preponderance of the evidence, the allegation of her original petition, that death was caused by 'heat prostration, sun stroke or heat exhaustion.' Death so caused is compensable under Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, and King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 53 A.L.R. 1086. Or under the same conditions she had to prove by a preponderance that as alleged in the amended petition, a previous heart ailment or disease was so aggravated 'by his working conditions and the heat of the day' as to cause death. Such death is compensable under ...