Becton v. Deas Paving Company, Inc.

• Decision Date: 11 March 1926
• Docket Number: 2544
• Citation: 3 La.App. 683
• Court: Court of Appeal of Louisiana — District of US
• Parties: BECTON v. DEAS PAVING COMPANY, INCORPORATED

3 La.App. 683

BECTON v. DEAS PAVING COMPANY, INCORPORATED

No. 2544

Court of Appeals of Louisiana, Second Circuit

March 11, 1926

Rehearing Refused April 10, 1926.

Appeal from the Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.

Action by W. E. Becton, an injured employee, against Deas Paving Co., Inc., to recover compensation under the Workmen's Compensation Law, Section 8, Subsection 1(b) of Act 20 of 1914, as amended by Act 216 of 1924. There was judgment for defendant, and plaintiff appealed.

Judgment reversed.

Theus Grisham and Davis, of Monroe, attorneys for plaintiff appellant.

McHenry Montgomery, Lamkin and Lamkin, of Monroe, attorneys for defendant, appellee.

OPINION

ODOM, J.

Plaintiff brought this suit to recover compensation at 65% of his wages during total disability not exceeding 400 weeks under the Workmen's Compensation Act (Act No. 20 of 1914 and amendments).

His demands were rejected by the lower court and he appealed.

STATEMENT OF THE CASE AND OPINION.

Plaintiff was employed by defendant to work at its asphalt mixing machine in West Monroe, Louisiana, as foreman and engineer at a weekly wage of $ 22.15. His duties were to fire the boiler and look after the engine. The place where he was working was a very hot one, the heat of the boiler being reflected upon him.

On July 24, 1924, a very hot day, the engine, which seems to have been on top of the boiler, was giving trouble. It stopped a number of times during the day, and in order to start it it was necessary for some one to climb up on the boiler and turn a wheel. The turning of this wheel required a great deal of physical strength and exertion.

Plaintiff had started the engine in that manner a number of times during the day, and on one occasion called to some colored laborers to start it, and it seems they were not successful, whereupon plaintiff again climbed up on the boiler and, with great physical exertion, turned the wheel and started the engine.

When he did this, he says:

"I felt a little keen pain in the side and turned sick in a few seconds, and the assistant foreman passed again--we were awfully busy getting started--and I says, 'You will have to send some one to take my place; I am sick.' He looked and said,

'I reckon you are; you go to the shed.'"

His testimony is that he went to the shed and the foreman called a physician, who carried him to his home. That was on Thursday. He remained in bed until the following Tuesday, when he got up and went back to work under the advice of the company's physician, and worked until August 20, when, he says,

"I had another attack."

In detailing the circumstances of the last attack, he said:

"The glass blowed out of the lubricator and I had to patch it--I didn't have no more glass--and was patching it, and it took thirty or forty minutes, and I fell out again the same way as I did the other time. It was a warm place where I was at."

After this attack, plaintiff went to his home, and soon after arriving there he fell to the floor unconscious. He was treated by a physician, who was sent for at once. As a result of this second attack he remained in bed for several days. He did not return to work, being advised by the physician that he was unable to work and that he was liable to fall dead at any moment. From that time to the date of the trial he was not able to perform any labor requiring physical exertion. He testified that he was not able to walk a block, and two physicians--the only ones who testified--stated unqualifiedly that he is unable to work and that any kind of physical exertion will probably produce death. And they further stated that this disability is permanent, there being no cure for it.

As to his condition and the cause, Dr. Milam, a physician who was employed by the insurance company to look after and treat those who were injured while in the employ of the defendant company, said:

"I would say his condition was caused by his occupation; by the heat, as I understand it from Mr. Riles, the foreman of the plant. Mr. Becton was there and had charge of the boiler, or cleaning out the boiler, I don't remember, but he was right in the heat there, and it was a very hot day, and along with the heat from the boiler was overcome by heat; kinder heat stroke or sun-stroke--heat stroke from his occupation, I would judge."

And he was asked:

"Q. In your opinion, what caused this second attack?"

And he said:

"A. I would imagine heat from exposure around that boiler was the cause of the second attack. I couldn't say positively. I didn't see him."

And he said, further:

"That could have caused it."

He also testified that he would advise plaintiff to get an easier job, where he would not be subjected to heat.

Dr. J. E. Waldsworth testified that he made a casual examination of plaintiff several months after he was stricken, but that within a week previous to the trial he had made a thorough examination.

He says plaintiff has an "aortic regurgitation," which, he says, means that the blood which goes into the aorta or aortic valves is insufficient; permits the blood to flush back out of the heart.

On being asked the effect of this heart trouble, he said:

"Well, when you have compensation, and I mean by compensation a sufficient enlargement of the heart to compensate for that leakage, why, you ordinarily don't suffer any inconvenience."

He was asked to give his opinion as to plaintiff's condition, and, after detailing the history of the case as it had been given to him, he stated that "aortic regurgitation" comes only slowly, and that, in his opinion, plaintiff had a diseased and impaired heart previous to the time he began to work for defendant, and was asked:

"Would anything cause it to come on all of a sudden or make it worse or aggravate it?"

And he said:

"Aortic regurgitation, the condition that he has there, is more susceptible to acute dilation of the heart than any other of the heart diseases, I think; and any over-exertion would be calculated to produce acute dilation of the heart. The dilation depending on the effect that produces it and the history of the heart muscles, that is, the degree of dilation."

And he was asked if he could say that these two cases of heat stroke or sunstroke were caused from over-exertion or aggravated or caused the heart trouble to become greater or more serious, and he answered:

"I would say yes. Any over-exercise, any stringent exercise, would be possible to produce a severe experience on his part. In fact, sudden death in aortic regurgitation is more common than any other type of heart disease."

And he further testified that any violent exercise would likely bring on a calamity, and he gave it as his opinion that over-exercise of the plaintiff on the occasion referred to "broke the compensation" and that after compensation is one time broken the danger increases materially after that because the muscle is already impaired; and he said:

"You can never recover completely, and it is more liable to break again than before."

He gave it as his opinion that the combined heat and exercise possibly brought on plaintiff's condition, and that he was capable of considerable exercise previous to the break in compensation, but that since then it would be dangerous for him to undergo any physical exertion.

He further stated that whenever exercise caused a break in compensation, that aggravated the patient's condition.

His attention was called to the great change which had taken place in plaintiff's condition since the accident of July 24 and August 20, and was asked if this change was brought about by the manual labor and exertion on those occasions, and he said:

"In my opinion, the history coincides with the facts that it did."

Plaintiff's demands are resisted by the defendant on the ground that defendant's condition was not brought about by any accident as contemplated under the workmen's compensation act.

Section 38 of that act defines "accident" to mean

"* * * an unexpected or unforeseen event happening, suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury."

We are of the opinion that plaintiff suffered an accident as contemplated under the law.

He was working in a hot place on a very hot day. He over-exercised himself, which caused an enlargement or dilation of the heart, and compensation was thereby broken. A condition was brought about by the heat and exercise which rendered the heart unable to function properly. This was sudden and happened unexpectedly. The "break in compensation" resulted from an effort put forth by plaintiff while at work in the course of his employment. It resulted...