Byrd v. Stonega Coke & Coal Co

• Decision Date: 06 December 1943
• Citation: Byrd v. Stonega Coke & Coal Co, 182 Va. 212, 28 S.E.2d 725 (1943)
• Court: Virginia Supreme Court
• Parties: BYRD. v. STONEGA COKE & COAL CO.

182 Va. 212

28 S.E.2d 725

BYRD.

v.STONEGA COKE & COAL CO.

Supreme Court of Appeals of Virginia.

Dec. 6, 1943.

Appeal from Industrial Commission of Virginia.

Proceeding under the Workmen's Compensation Act by Agnes Byrd for the death of Frank Byrd, her husband, claimant, opposed by the Stonega Coke & Coal Company, employer.From an order of the Industrial Commission denying compensation, claimant appeals.

Reversed and remanded, with direction.

Before CAMPBELL, C. J., and HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Fred B. Greear, of Norton, for appellant.

Camblos & Sandt, of Big Stone Gap, for appellee.

HUDGINS, Justice.

Frank Byrd had been employed at the coke ovens of the defendant company for approximately six years.On July 30, 1942, he began work at the coke ovens about midnight and continued to work until 10:45 a. m. the next day, when, while pulling coke out of the oven, he suddenly fell backward and died within a few moments.Agnes Byrd, wife of the decedent, filed with the Industrial Commission her claim for compensation under the Workmen's Compensation Law.She prosecutes this appeal from an order of the Commission denying her compensation.

The undisputed evidence shows that Byrd was a negro man, forty-one years of age and apparently in excellent health.During the preceding seven years he had been ill only once, then for two weeks in February, 1942, with an attack of influenza.He was thoroughly examined six years prior to his death and found to have no heart trouble.The company doctors examined him again in February, 1942.The report of the examination made no reference to an affliction of the heart.The evidence is conclusive that Byrd was a healthy, strong, comparatively young man and apparently free of physical ailments.

The duties of decedent required him to operate several coke ovens which are filled with coal and burned to coke.The coke is removed several times during the day.The temperature in the ovens is raised to 2400or 2500 degrees.When the coke is in proper condition, water is turned on the ovens and the temperature of the coke is reduced so that it can be handled.Then the oven doors are opened and the coke is pulled out with tools varying in length from four to twelve feet.The accumulated gas is drawn off through tunnels, but occasionally some escapes through the door when it is opened.The temperature around the oven, where the duties of the decedent required him to be, was ten or twelve degrees higher than normal.July 31 was a very hot sultry day.Some witnesses stated that it was one of the hottest days of the summer.Under these conditions, decedent was pulling or jerking a "beaver, " used to break the coke down and rake it through the door, when he suddenly collapsed and died.

Michie's Code 1942, sec. 1887(2), (d), provides that " 'injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment * * *."

As an original proposition, it would seem logical to hold that the facts, as related, do not disclose an "accident."However, generally it has been held that the term "injury, ""personal injury, " or "personal injury by accident, " caused by excessive heat, cold or other meteorological phenomena, is embraced within the meaning of the statute.On this subject, however, there are conflicting opinions.SeeMcCormick Lumber Co. v. Dept. of Labor and Industries, 7 Wash.2d 807, 108 P.2d 807;Central Illinois Public Service Co. v. Industrial Commission, 291 Ill. 256, 126 N.E. 144, 13 A. L.R. 967, and annotation 974;Cunningham v. Warner Gear Co., 101 Ind.App. 220, 198 N.E. 808.;Scott County School Board v. Carter, 156 Va. 815, 159 S.E. 115, 83 A. L.R. 229, and annotation 234;Hagrove v. Arnold Construction Co., 229 Mich. 678, 202 N.W. 918, 40 A.L.R. 398;Madden's Case, 222 Mass. 487, 111 N.E. 379, 382, L.R.A.1916D, 1000;28 Ruling Case Law, sec. 87, p. 795;Schneider's Workmen's Compensation Law, vol.1, 2d Ed., sec. 249, p. 701.

In Farmers' Mfg. Co. v. Warfel, 144 Va. 98, 131 S.E. 240, at page 242, it is said: "The injury, to be compensable, must, of course, be shown to be a consequence or result arising out of the employment, and if this consequence or effect--i. e., the injury--can be traced to the employment as the cause, then it is logical to hold that it arises out of the employment."

Whatever may be the conflicting views in other jurisdictions, it is now settled in Virginia, both by decisions of the Industrial Commission and this court, that, if the injury or death results from, or is hastened by, conditions of employment exposing the employee to hazards to a degree beyond that of the public at large, the injury or death is construed to be accidental within the meaning of the statute.SeeRichardson v. Ratcliffe and Tanner, Inc., (sunstroke), 8 O.I.C. 1028;Robinson v. Miller Mfg. Co., (heat stroke), 9 O.I.C. 465;Carter v. Scott County School Board, (tornado), 12 O.I.C. 236;Scott County School Board v. Carter, supra;White v. MasonMfg. Co., 13 O.I.C. 540.

Stating the same principle in different language, an employee is entitled to recover for injuries sustained if those injuries (not disease) were the immediate consequence of his exposure to a greater hazard by reason of his employment than that to which he otherwise would have been exposed.

The employee in the instant case was apparently enjoying the best of health.Neither his wife nor intimate friends had ever heard him complain of any physical ailment except during the one attack of influenza which occurred five months prior to his death.While performing his duties under conditions that exposed him to artificial heat to a much greater degree than he otherwise would have been exposed, he suddenly collapsed and died.The natural inference from these conceded facts is that the extreme heat to which the employee was exposed was the proximate or contributing cause of death.This is true because it is a matter of common knowledge that frequently persons apparently normal collapse from exposure to extreme heat or cold.Hence, when facts, such as heretofore stated, are established, a claimant should be held to have made out a prima facie case for compensation.

Defendant, while conceding the extrahazardous conditions under which the employee worked, contends that there was no causal connection between the extra hazards and the death of the employee.

Five doctors testified, three for claimant and two for defendant.A study of this expert testimony leaves the mind in doubt and confusion.Two doctors stated thatthey thought death was due to heart failure.One of these added: "What part the heat or exertion played I am not able to say."

Dr. Frank E. Handy, witness for the claimant, stated that, in the absence of other known causes, the excessive heat was probably the proximate cause of death.On cross-examination, he was asked this question:

"Q.Under the circumstances about which Mr. Greear asked you, if you would rule out heat stroke and leave all the other causes of death in, then, what would you say would cause the man's death?

"A.It is more apt to be some heart condition to cause a sudden death like that, I think."

This statement threw no light on the issue.

Dr. Glen D. Foster was called to attend and reached the decedent within thirty minutes after he was stricken.When called as a witness by defendant, he stated: " * * * I examined his heart in particular, and examined his pupils, and they were normal in outline but did not react, which was one indication that he was not alive; and there was no sweat, which is one of the principal symptoms going with a heat stroke; i. e., his clothes were not excessively sweaty and his bodily temperature was not excessive.His body had not cooled off completely but he was not hot."

He stated that the medical authority to which he referred was Cecil on General Medicine.Dr. G. W. Botts, called by claimant, read from the same medical textbook, in which it is said: "In heatstroke or sunstroke the heat-regulating mechanism of the body is apparently overwhelmed and not merely embarrassed as in heat exhaustion.The onset may be catastrophic, with almost instantaneous death, or there may be premonitory headache, dizziness, nausea, and visual disturbances.

"Consciousness is lost early in the course of the attack.The face of the patient is flushed, the skin dry and hot.The body temperature is elevated in the more severe cases to 109 F. or more.In the first stages of heat-stroke the pulse is full and rapid, the breathing deep, and the pupils possibly dilated.As the patient's condition becomes progressively worse the pulse grows irregular, rapid, and more feeble, the breathing more shallow and of the Cheyne-Stokes type, and the pupils contract."

It is thus seen that the authority on which Dr. Foster relied does not fully support his opinion.

Dr. G. W. Botts was asked:

"Q.Doctor, assuming that this man did have some heart ailment, would the exposure to this excessive heat have any effect on his heart aside from a straight out heatstroke?

"A.Yes, the heat could embarrass...