Dougan v. Booker

• Decision Date: 17 October 1966
• Docket Number: No. 5--3945,5--3945
• Citation: 407 S.W.2d 369,241 Ark. 224
• Parties: Myrtle DOUGAN et al., Appellants, v. Douglas BOOKER and St. Paul Insurance Company, Appellees.
• Court: Arkansas Supreme Court

Page 369

407 S.W.2d 369

241 Ark. 224

Myrtle DOUGAN et al., Appellants, v. Douglas BOOKER and St. Paul Insurance Company, Appellees.

No. 5--3945.

Supreme Court of Arkansas.

Oct. 17, 1966.

Rehearing Denied Nov. 21, 1966.

John L. Wilson, Hope, and S. Hubert Mayes, Jr., Little Rock, for appellants.

Riddick Riffel, Little Rock, for appellees.

BLAND, Justice.

This is a Workmen's Compensation case. The appellants are Mrs. Myrtle Dougan, widow of Neuman Elmore Dugan, deceased, for herself and the other dependents of Mr. Dougan who suffered a heart attack and died on November 2, 1963 while working for Douglas Booker, the appellee. She claims that Mr. Dougan's collapse and death arose out of and in the course of his employment and that point is disputed by the employer and his insurance carrier.

There was a hearing on the claim before the Referee on June 3, 1964 and at that hearing Dr. G. G. Hairston testified that he had been Mr. Dougan's family physician; that he had treated him in a previous heart attack; that he knew Mr. Dougan's condition; that he had advised Mr. Dougan not to overtax himself, and if he had any symptoms of chest pain or fatigue to stop and rest. Dr. Hairston stated that if on November 2, 1963 Mr. Dougan was underneath a house, holding up a 2 6 piece of lumber with one hand and nailing it with the other, such exertion would have a straining effect on him and that such straining effect, in Dr. Hairston's opinion, caused the heart attack which Mr. Dougan suffered on the job.

Dr. Hairston was the only medical witness who appeared and testified in person. The other medical witnesses testified by deposition. At the conclusion of the hearing before the Referee on June 3, 1964, it was agreed that expert witnesses could be presented later. On September 17, 1964 the claimants took the deposition of Dr. Phillip Cullen. He pointed out that the evidence showed that Mr. Dougan had done heavy work just before his heart attack and that it was his (Dr. Cullen's) opinion that the excess strain of the heavy work was the cause of the heart attack. The case was allowed to drag along until November 11, 1964 when the respondent insurance carrier took the deposition of Dr. Alfred Kahn. He testified that he never saw Mr. Dougan, but had reviewed the transcript of the testimony taken on June 3rd; that from a reading of that testimony and in answer to a detailed hypothetical question, it was his (Dr. Kahn's) opinion that Mr. Dougan's work did not contribute to his death. With this opinion evidence of Dr. Kahn's, a Referee (other than the one who heard the witnesses on June 3rd) wrote an opinion on February 5, 1965 denying the claim. The Commission (only two members acting ¹) heard no more evidence and on June 2, 1965 adopted the written opinion of the Referee.

The Circuit Court affirmed the judgment of the Commission and the appellants bring appeal to this Court. The employer-employee relationship is admitted. The factual situation is as follows:

During the week Neuman Elmore Dougan, who had a previous history of heart trouble, worked at Ark-La Village and on weekends and holidays worked as a carpenter for Douglas Booker, a contractor at Emmet, Arkansas. At about 7:30 a.m. on Saturday, November 2, 1963, Dougan did various carpentry work for Booker at a residence where he was required to work on his knees or in a stooped position. He returned to his home about 9:00 a.m. to get a crowbar and took a dose of Milk of Magnesia because he thought his stomach was bothering him. He then left to work at the Home Economic Cottage at Emmet High School where his employer was doing some remodeling work. He returned home at noon still complaining of his stomach. He went back to the Home Economic Cottage and worked by himself for a while and was joined by another worker at 2:00 p.m. The two of them lifted, held and nailed a 2 6 board underneath the floor of the house from a cramped position and then sawed and nailed a 4 8 piece of plywood on the floor of the house. The two men loaded scrap lumber onto a truck and took it to the employer's house and returned with the employer to the Home Economic Cottage where further work was done by the three of them.

At about 2:00 p.m. Dougan again returned home to get a piece of plywood and asked his wife to go to Prescott to get a prescription refilled. After working a while longer, deceased complained of what he thought was stomach trouble. He continued to work and handed lumber to his employer and the other worker from a seated position. At approximately 4:30 p.m. his employer directed him to go about one block from the Cottage to turn on the water supply to the Cottage. After he had been gone for approximately fifteen minutes, he was discovered lying on the ground by the water valve and was taken to the hospital in the employer's car but was pronounced dead of a heart attack upon arrival.

We thus have a case before us where a worker with a bad heart put forth unusual exertion in his work and collapsed on the job and died; and yet compensation has been denied his widow and dependents. Such is a miscarriage of justice in that the Commission failed to give the workmen's compensation law a liberal interpretation in favor of the claimant which has been our frequently stated rule.

In Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W.2d 614, the Commission had denied compensation, yet this Court awarded compensation, saying that the testimony relied on by the Commission to deny compensation was not substantial:

'* * * All of the doctors who examined the claimant over a period of time stated that his disability is due to silicosis; evidence to the contrary is very weak and not substantial. Whether there is substantial evidence is a matter of law. Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S.W.2d 738.

The law of this State is that workmen's compensation cases should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant. Arkansas National Bank of Hot Springs v. Colbert, 209 Ark. 1070, 193 S.W.2d 806; Elm Springs Canning Company v. Sullins, 207 Ark. 257, 180 S.W.2d 113; Williams Manufacturing Company v. Walker, 206 Ark. 392, 175 S.W.2d 380; Peerless Coal Company v. Jones, 219 Ark. 181, 240 S.W.2d 647.

If this law has any meaning or force or effect, it should be applied here.'

In Tri-State Const. Co. v. Worthen, 224 Ark. 418, 274 S.W.2d 352, the worker suffered a cerebral hemorrhage and collapsed on the job. The Workmen's Compensation Commission denied compensation and we held the Commission was in error, saying:

'The Commission found that Worthen's collapse was not the result of his work, but was the result of a pre-existing diseased condition. * * *

In a long line of cases we have held that when the worker collapses because of excessive work load or unusual strain, he is entitled to compensation, even though he had a pre-existing weakness which contributed to his collapse. One such case is Triebsch v. Athletic Mining & Smelting Co., 218 Ark 379, 237 S.W.2d 26, 29, and we quote from that case in extenso:

'But on the accidental injury phase of the case, the uncontradicted evidence shows that the claimant suffered an accidental injury within the purview of our cases such as: Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S.W.2d 252; McGregor v. Arrington, 206 Ark. 921, 175 S.W.2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S.W.2d 961; Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S.W.2d 629; Murch-Jarvis Co. v. Townsend, 209 Ark. 956, 193 S.W.2d 310; and Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S.W.2d 31.

In Herron Lumber Co. v. Neal, supra, the worker had a gastric ulcer which ruptured while he was performing a task that required extra energy. We held that the worker suffered an accidental injury within the purview of the Workmen's Compensation Law, and quoted from 71 C.J. 607:

'Injury from strain or over-exertion due to a physical condition pre-disposing the employee to injury is an injury within the terms of the various workmen's compensation acts * * *." * * *

'In McGregor and Pickett v. Arrington, supra, the worker was a carpenter. He had an impaired heart, and, in trying to move a plank, he overexerted himself and suffered a collapse and died. We allowed compensation, saying that the decedent's death resulted from an accidental injury arising out of and in the course of his employment.

In Harding Glass Co. v. Albertson, supra, the worker also had an impaired heart; and while at work suffered a heat prostration and died. In allowing compensation, we quoted from Schneider on Workmen's Compensation Text, Vol. 4, 1328, p. 543:

"It may be stated generally that if the conditions of the employment, whether due to overexertion, excessive heat, excessive inhalation of dust and fumes, shock,...