Armstrong Tire & Rubber Co. v. Payton
| Decision Date | 09 May 1966 |
| Docket Number | No. 43886,43886 |
| Citation | 186 So.2d 217 |
| Court | Mississippi Supreme Court |
| Parties | ARMSTRONG TIRE & RUBBER COMPANY and United States Fidelity & Guaranty Company v. Mrs. Cora Lee PAYTON, dependent of Elbert Rex Payton, Deceased. |
Laub, Adams, Forman & Truly, Natchez, for appellant.
J. A. Travis, Jr., Jackson, for appellee.
This is an appeal from a judgment of the Circuit Court of Adams County affirming an order of a majority of the Workmen's Compensation Commission declining to apportion an award of death benefits.
This is the second appearance of this case here, the opinion of the Court on the former appeal appearing in 250 Miss. 407, 165 So.2d 336 (1964).
At the original hearing, it was stipulated that the issue was whether there was a causal connection between decedent's death and his employment. There was no dispute that the immediate cause of death was the rupture of a preexisting aortic aneurysm.
The attorney referee and the full commission reached the factual conclusion that there was no causal connection whatever between decedent's employment and his death and denied the claim. This judgment was affirmed by the circuit court. Upon appeal by the claimant, the widow and sole dependent of the decedent, this Court reversed, and remanded the case to the Workmen's Compensation Commission, saying:
'After careful consideration of the record we are of the opinion that the overwhelming weight of the evidence shows that the physical labor which the deceased performed on the day of his death aggravated his preexisting condition and contributed to the ruptured aneurysm which caused his death.' (Emphasis added.) (250 Miss. at 413, 165 So.2d at 338).
When the case reached the commission on remand, two of the commissioners considered that, because the employer had denied that there was any causal connection whatever between the employment and death, and had not, in addition, by formal plea expressly interposed the pro tanto defense of apportionment at the original hearing, no apportionment of the award could now be made.
Four of the justices consider that, on the evidence before the commission, apportionment would have been required, if it had been pled originally. But they are of the opinion that it is not now permissible, the respondents not having expressly interposed that additional and partial defense by separate plea at the original hearing. The majority has concluded, however, that the undisputed causal connection between the preexisting condition, asserted and proved by claimant, as an integral and indispensable part of her claim, requires apportionment under Mississippi Code Annotated section 6998-04 (Supp.1964), and that such apportionment is mandatory under these circumstances.
The difficulty in this regard seems to have arisen from a construction of a stipulation made at the beginning of the original hearing that the sole question to be determined was whether or not there was a causal connection between the employment and the death.
Claimant's application for compensation benefits under section (e), paragraph two, which provides a space for 'description of accident and cause of injury,' states: 'Suffered a ruptured vascular aneurysm aorta while engaged in work.'
The employer-carrier denied that there was any causal connection between decedent's employment and his death. It will be noted that the resulting issue was not whether a preexisting condition was a contributing factor in the death. That was not disputed. The preexisting condition was asserted on claimant's claim form, and the burden was upon claimant to prove it as an integral and indispensable part of her claim that activity on the job precipitated the rupture of the existing aneurysm.
The affirmative defense of a preexisting disease is what this Court has said must be pled. In the view of a majority of the Court, it was not necessary under the above circumstances that the employer-carrier plead or prove as an affirmative defense that which was asserted and proved by claimant as an integral and indispensable part of her claim.
Several doctors testified for each side at the hearing, and the result of the autopsy was introduced into evidence by claimant.
Without dispute, competent medical findings, properly before the commission, show that death resulted from a rupture of the preexisting aneurysm described on the claim form and disclosed by the autopsy.
Counsel correctly stated to the commission that the sole question was whether there was a causal connection between the employment and the death. This was the only matter of fact at issue. There was no 'issue' as to the causal connection between the preexisting lesion and the death. This was the conditio sine qua non of the claim. It was asserted by claimant and proved by undisputed competent medical findings, properly before the commission. The degree to which it contributed, if any, became a matter for determination by the commission.
Under the stated circumstances of this case, no further pleading was necessary in order to require qpportionment upon the basis of the evidence. To hold otherwise, under the facts here, would impose upon the commission a rule of pleading more harsh and archaic than that obtaining in any court within this state in the last century.
In 1960, the Mississippi Legislature amended the Workmen's Compensation law, Mississippi Code Annotated section 6998-01 through 6998-54 (Supp.1964), imposing upon the Court the duty that the
While the question does not appear to have been determined in any Mississippi case involving workmen's compensation law, it has long been recognized in the courts, as a rule dictated by reason and fairness, that where all of the facts which would constitute a defense are established by proof introduced by a plaintiff, this obviates the necessity on the part of the defendant to establish these facts. Bridges v. Jackson Elec. Ry., Light & Power Co., 86 Miss. 584, 38 So. 788 (1905).
The most recent statement of the rule by this Court appears in Prudence Life Ins. Co. v. Cochran, 183 So.2d 830 (Miss.1966).
In that case, it was contended that an exclusionary provision in an insurance policy was not effective to relieve the company of liability, because it was not pled as an affirmative defense in its answer. The Court cited Logan v. City of Clarksdale, 240 Miss. 716, 128 So.2d 537 (1961), and held that the contention was not well taken because the facts constituting that affirmative defense were established by the testimony of plaintiff's own witness.
In Southeastern Construction Co. v. Dependent of Dodson, 247 Miss. 1, 153 So.2d 276 (1963), this Court, in discussing the workmen's compensation statute on apportionment, said:
(247 Miss. at 16, 153 So.2d at 283.)
This Court has held repeatedly that the jury may properly consider contributory negligence in diminishing an award of damages against a defendant, although not pled, if the proof discloses that such contributory negligence was a proximate contributing cause of the injury. The cases on this point are collated in a recent opinion of this Court in Herrington v. Hodges, 249 Miss. 131, 161 So.2d 194 (1964).
In addition to the complete and detailed autopsy report which was introduced into evidence by claimant, the commission had before it the testimony of at least five doctors, and the medical and other evidence relating to the cause of death was unusually complete and detailed.
The autopsy disclosed a large aneurysm, the rupture of which caused death. The medical findings were that this was a natural lesion, wholly unrelated to the employment either in origin or growth, and that its size and condition showed it had been developing over a period of many years.
In Federal Compress & Warehouse Co. v. Dependent of Clark, 246 Miss. 868, 152 So.2d 921 (1963), this Court approved an apportionment of the award. In that case, it was contended that the evidence was insufficient to support an apportionment. This Court said:
* * *' (246 Miss. at 873, 152 So.2d at 923.)
In Southeastern Construction Co. v. Dependent of Dodson, supra, the question was raised as to the 'extent of an administrative agency's discretion in determining the apportionment of compensation death benefits, between that due to the injury and that due to a preexisting symptomatic coronary artery disease; * * *.' (247 Miss. at 5, 153 So.2d at 277.)
The Court continued:
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