Douglas v. Warner Gear Division of Borg Warner Corp.

• Decision Date: 12 May 1961
• Docket Number: No. 2,No. 19496,19496,2
• Parties: Martha Rose DOUGLAS et al., Appellants, v. WARNER GEAR DIVISION OF BORG WARNER CORPORATION, Appellee
• Court: Indiana Appellate Court

Page 584

174 N.E.2d 584

131 Ind.App. 664

Martha Rose DOUGLAS et al., Appellants, v. WARNER GEAR DIVISION OF BORG WARNER CORPORATION, Appellee.

No. 19496.

Appellate Court of Indiana, Division No. 2.

May 12, 1961.

Archie Lapin, Dick Clapp, Muncie, for appellants.

Murray, Mannon, Fairchild & Stewart, Richard W. Guthrie, Indianapolis, for appellee.

KELLEY, Judge.

Appellants' decedent, while in the employ of appellee, suffered a heart attack and died. Appellants, as alleged dependents of said decedent, sought recovery against appellee under the provisions of the Workmen's Compensation Act on the ground that decedent's demise was the proximate result of personal injuries sustained by him by reason of an accident arising out of and in the course of his employment by appellee. The Full Board found that on January 5, 1959 decedent suffered a cardiac attack which resulted in his death; that said decedent did not sustain an accidental injury arising out of and in the course of his employment by appellee; and that said cardiac attack was not caused by or related to decedent's said employment. Further finding and award was against appellants on their application.

Appellants' application, Form 10, is not set forth in their brief. They say, however, that it described the accident and cause of injury as: 'the overexertion and strain from duties requiring among others the tipping of heavy containers used for scrap and sweepings in a department where ventilation was poor and air polluted.' They further say that the nature of the injury is alleged to be: 'exertion and strain occasioned in the course of his duties as a sweeper, requiring sweeping, moving about, tipping of heavy containers for sweepings and scrap, resulting in a myocardial infarction, coronary occlusion.'

That portion of appellants' brief devoted to 'Argument' covers pages 35 to 64, inclusive. Of those pages, pages 35 to the middle of page 61 are devoted to a discussion of the holdings of three Indiana cases. All this is under the stated proposition, in substance, that: 'The Law is that the Award must be sustained by substantial evidence.' The only reference in the 'Argument' to the evidence in the cause is contained in one paragraph on pages 61 and 62 of the brief which we quote in haec verba:

'But the case of your appellant is made even stronger by uncontradicted testimony that January 5, 1959, was the day 'after inventory' and decedent's work on that day was 'unusual'. Appellee put into evidence the testimony of only one witness who observed decedent working on that fatal day. Certainly, the evidence of that one witness would be most favorable to the appellee and could be considered by the court. But that witness definitely states that there was about the 'usual amount' of shot for a Monday morning, but that there was more 'paper and refuse' than usual, more than 'normal' to be swept up that day--'There was more refuse and paper on the floor than normal, they would throw inventory tickets on the floor when they got throught with them.''

There are no references to the lines and pages of the transcript where the 'uncontradicted' testimony and the testimony of the 'one witness' may be found. There is no reference to evidence tending to show what the usual work of decedent was on 'that day' or what he was then required to do which made his work 'unusual'. The 'one witness' referred to may have definitely stated, as appellants say, that there was more paper and refuse than usual or normal but there is not one word as to the evidence, if any, which showed or established what, if anything, the decedent had to do with it; what 'shot' is and how much it weighs, how decedent was required to handle it, lift it, roll it, move it, or whatever it may have been necessary for him to do about it; whether the paper and refuse was light or heavy and what were the duties of decedent with reference thereto. In short, there is nothing stated about the evidence or any reference made thereto which tended to show that decedent was required to and did work under an increase in the work load or did any extra exertion or that there was any 'evant or happening beyond the mere employment itself.' Quotation from United States Steel Corporation v. Dykes, 1958, 238 Ind. 599, 613, 154 N.E.2d 111, 119.

No reference at all is made to any evidence in support of the asserted allegation in appellants' application that the 'cause of injury' was overexertion and strain from duties requiring 'the tipping of heavy containers used for scrap and sweepings.' Nor is any reference made to any evidence in support of the asserted allegation that the heavy containers which were allegedly tipped were in a department 'where ventilation was poor and air polluted.' Appellants give us no delineation or resume of the material and pertinent facts established by the evidence. We are left to do this work for them by reading and sifting through the entire bill of exceptions containing the evidence in quest of evidence to support their proposal, seeking the necessary and permissible reasonable inferences therefrom, and all the while carefully selecting that evidence and those inferences favorable to the award or mitigating against it. We hardly think that such is our obligation particularly in view of the heavy workload now cast upon this court and the necessity of readily determining other cases of equal importance which now stand advanced on the docket.

We note further that appellants apprise us that the Dykes case, supra, 'merely holds that where decedent suffered from progressive arteriosclerosis, and where decedent was engaged in his ordinary and usual work, and where, while so engaged, decedent suffers a fatal coronary seizure, then that seizure is not an accident.' Appellants then continue: '* * * we humbly submit that there is no evidence in the instant case, put there on behalf of appellee, that will bring the instant case under the shelter of the Dykes Doctrine.' Following this, appellants assert: 'perusal of the preceding pages of this Brief will reveal that it is uncontradicted that decedent herein suffered a fatal myocardial infarction while on the job; there is not the faintest trace of evidence in the instant case to the effect that said myocardial infarction was not 'an unlooked for mishap or untoward event not expected or designed.' * * * In order for this cause to be noncompensable it must be brought within the Dykes Case. But there was no autopsy performed in this cause * * *. There is no history of heart disease in this case. * * * Nowhere in the entire record can it be found that appellee's counsel asked any question of any witness which included the word 'ateriosclerosis.' * * * Yet, appellee apparently feels that compensation should be denied in the instant case due to the ruling of the Dykes Case.'

If we accurately divine appellants' rationalization in this matter, it would seem that the contention is made that there is no evidence in this record that the decedent entertained a diseased heart or that he was afflicted with an arteriosclerosis, progressive or otherwise, and, therefore, the proven fact that he suffered a fatal heart attack while in the performance of the duties of his employment by appellee, which attack was inferentially an 'unlooked for mishap or untoward event not expected or designed' by him, established prima facie that he had sustained an accidental injury arising out of and in the course of his employment and cast upon appellee the burden of overcoming such prima facie case, which burden appell...