Clifton v. Arnold

• Decision Date: 27 April 1956
• Docket Number: No. 4164,4164
• Citation: 87 So.2d 386
• Parties: Laura Fussell CLIFTON, Plaintiff-Appellee, v. Sam ARNOLD, d/b/a Arnold's Sawmill, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 386

87 So.2d 386

Laura Fussell CLIFTON, Plaintiff-Appellee, v. Sam ARNOLD, d/b/a Arnold's Sawmill, Defendant-Appellant.

No. 4164.

Court of Appeal of Louisiana, First Circuit.

April 27, 1956.

Rehearing Denied May 25, 1956.

Ponder & Ponder, Amite, for appellant.

Richard M. Mathews, New Orleans, for appellee.

TATE, Judge.

This is a compensation suit. Plaintiff widow seeks recovery for the death on August 17, 1954, of her husband, Joseph S. Clifton, who allegedly died as the result of an accident sustained eight days earlier in the course of his employment.

Decedent's death allegedly resulted from the aggravation of a pre-existing cardiac condition as a result of an industrial accident, wherein decedent slipped and fell and sustained a lumbo-sacral strain, as well as severe bruises of the hip and groin.

Defendant denies that an accident occurred in the course of decedent's employment and further defends on the ground that decedent died from natural causes and not as a result of any traumatic aggravation of his cardiac condition.

The defendant attacks the District Court's finding that an accident had occurred as based solely on hearsay evidence.

There were no eyewitnesses testifying as to the accident. All decedent's co-workers (still employed at date of trial by defendant employer) testified that they had not seen decedent fall at work. Some of them further testified to their belief that they would have seen decedent fall if he had done so. Further, defendant employer testified that on the morning of August 9th when he picked decedent up before the workday on which the accident occurred, decedent mentioned having fallen the previous week. Doubtless, if accepted by the District Court, this testimony would support a finding by the District Court that no accident had occurred.

But there is other strong testimony, preponderant when accepted by the District Court, which proves that indeed an accident had occurred as alleged during decedent's day at work on August 9th with defendant. His physician had seen him Sunday, August 8th and decedent was well and unbruised. Decedent's wife and daughter testified that he had left for work the morning of August 9th unbruised, but returned that night (picked up and returned personally by defendant employer) with fresh bruises on his back and leg, which were then rubbed by his wife and daughter. He told them he had slipped and fallen at work that day.

Defendant objects strenuously to the admission of this testimony of what decedent told his wife and daughter on his return from work as hearsay (and not within the res gestae rule as too remote from the accident), as well as of the other testimony from the doctor and various lay witnesses as to decedent's subsequent statements of his fall at work. Certainly, in this workmen's compensation suit, the statements of the decedent to his wife and daughter upon his return from work as to the cause of the injuries received during the day are admissible, Arriggton v. Singer Sewing Machine Company, La.App., 16 So.2d 145, certiorari denied; Butler v. Washington-Youree Hotel Company, La.App., 160 So. 825; see also, Zito v. Standard Accident Insurance Company, La.App. 1 Cir., 76 So.2d 25; Duracher v. Canulette Shipbuilding Company, La.App. 1 Cir., 21 So.2d 100.

In a compensation suit, 'The court shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence,' LSA-R.S. 23:1317. "Competent evidence' is that which is relevant and material to the issue to be determined. Joseph A. Coy Co. v. Younger, 192 Okl. 348, 136 P.2d 890, 891. * * * On review by circuit court of an award of the Workmen's Compensation Board, the board's findings of fact cannot be disturbed if sustained by any 'competent evidence', which means evidence that tends to establish the fact in issue and does not rest on mere surmise or guess. Black Motor Co. v. Spicer, 290 Ky. 111, 160 S.W.2d 336, 337. By 'competent evidence' is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case. Horbach v. State, 43 Tex. 242, 249.' 8 Words and Phrases, Competent Evidence, p. 354.

However, even in a compensation proceeding there may be limits to the admissibility of hearsay evidence of a claimant's statements, as when made long after the event and in circumstances which indicate a self-serving nature to aid a pending lawsuit, see e. g., Jack v. International Paper Company, La.App., 56 So.2d 875, Stovall v. Thomas Lumber Company, La.App., 189 So. 379.

Whether or not the various other statements made during the week before his death by decedent as to his fall at work were admissible--and we expressly do not decide this point--we feel that the accident at work in this suit is preponderantly proved by the testimony accepted as credible by the District Court of decedent's wife and daughter as to decedent's bruises and explanation therefor after his return from work on August 9, 1954, said bruises being corroborated by the physical examination of a physician on August 12th.

It perhaps should be added that decedent's son testified that defendant Arnold stated to him at the funeral that decedent had fallen at work (Tr. 129-130), which if accepted as correct by the trier of fact is admissible as proof of the accident itself, being an admission against interest by defendant, Gulf Refining Company v. Bagby, 200 La. 258, 7 So.2d 903, AEtna Finance Company v. Betz, La.App., 35 So.2d 909. On the final day of this rather protracted trial, defendant Arnold seems to have tacitly admitted the accident when he testified: 'I feel I am plumb clear is why I am fighting it [i. e., the law suit], because I have had accidents bigger than this on the job with no law suits, no questions asked or nothing. There was bigger accidents than this was.' (Tr. 303.)

A more substantial controversy is presented as to whether the accident at work caused or proximately contributed to decedent's death.

Decedent Clifton worked the remainder of the day (August 9th) following the accident, and he returned and worked through the following day (August 10th). Defendant's witnesses deny, plaintiff's witnesses testify, that decedent complained of pain or strain during this time.

On August 11th, decedent remained home in bed. On August 12th, his family physician (Dr. Jacob Kety) examined him, found him suffering from lumbosacral strain, and placed him in traction. Dr. Kety noted the large bruises on the left thigh and flank and the patient's complaints of back and chest pain. With regard to the latter pains, Dr. Kety specifically checked decedent for cardiac effects of the injury, but none were clinically evident on August 12th.

On August 16th, while in bed decedent suffered a massive coronary occlusion, or heart failure, from which he died on August 17th.

Dr. Kety described the mechanism of death in these words, Tr. 13:

'My opinion is that in this individual there was a normal amount of arteriosclerosis present. Arteriosclerosis is a generalized disease. Part of the pathophysiology of the disease includes the deposition of artheromatous plaques in all of the arteries of the body, including the arteries around the heart. This man has this condition. I know because I treated him. During times of stress or trauma, there is a--the pathophysiology that takes place at first is shock which may not be clinically evident altogether but shock always takes place in a minimized degree followed by a temporary hypotension. There may be and as it happened in this case, a bleeding into one of the atheromatous plaques which causes a slow closing off of the coronary artery. This develops, clinically, first at signs of coronary insufficiency which means an insufficient blood supply which means the same as an insufficient supply of oxygen to the heart which causes first a myocardial ischemia, which, if the blood supply is completely excluded the ischemia becomes an infarct which means death of the part. Since I observed this patient and saw him every day * * * there is no doubt whatsoever in my mind that he followed this course, that the mechanism of death was first,--the acute cause of death was a myocardial infarct which was due to coronary insufficiency which was due to arteriosclerosis. Contributing cause of death was injury.' (Italics ours.)

Thus in Dr. Kety's opinion the acute cause of Clifton's death was a myocardial infarct (i. e., damaging or death of part of the heart muscle), caused by a coronary insufficiency (i. e., decreased flow of blood to heart), which in turn was immediately caused by the shock resulting from the accident or the undue exertion in attempting to work with the painful injuries.

The medical question thus narrows down to whether the accident on the job, with the shock therefrom or from the undue exertion resultant from attempting to work with pain after the injury, caused or contributed or aggravated the coronary insufficiency so as to cause the myocardial infarct which subsequently caused decedent's death.

Dr. Kety reiterated several times that as attending physician he was certain the industrial injuries directly contributed to the myocardial infarct which caused Clifton's death.

Dr. Albert Hyman, a qualified cardiac specialist, testified on behalf of plaintiff most positively that trauma may precipitate the factors leading to death through myocardial infarct of a sixty-two year old man in decedent's position. He testified to his opinion, based on the history as proved by the evidence, that the attending physician's diagnosis of the cause of death was correct. That 'the trauma is inextricably connected as a precipitating factor to the end result; that is, death', he felt 'sure' was true. (Tr. 256.)

Dr. A. L. Lewis and Dr. J. H. McClendon, general practitioners who (like Dr. Hyman) never saw decedent but testified in reply to hypothetical...