Gilmore v. Hoke County Bd. Of

• Decision Date: 16 December 1942
• Docket Number: No. 665.,665.
• Court: North Carolina Supreme Court
• Parties: GILMORE et al. v. HOKE COUNTY BOARD OF EDUCATION et al.

23 S.E.2d 292

222 N.C. 358

GILMORE et al.

v.HOKE COUNTY BOARD OF

EDUCATION et al.

No. 665.

Supreme Court of North Carolina.

Dec. 16, 1942.

Appeal from Superior Court, Hoke County; Walter J. Bone, Judge.

Workmen's compensation proceeding by Mattie Gilmore (widow), Mattie Gilmore Grace, Lamont Gilmore, DeWitt Gilmore, Woodrow Harris, widow and children of Dean Gilmore, deceased employee, opposed by the Hoke County Board of Education and its carrier, Travelers Insurance Company and/or State School Commission, self-insurer. From a judgment affirming an award to claimants, defendants appeal.

Reversed.

Proceeding under North Carolina Workmen's Compensation Act to determine liability of defendants to claimant.

Upon the hearing before single commissioner of the North Carolina Industrial Commission, evidence was offered tending to show that on July 17, 1939, Dean Gilmore, age 65 years, intestate of claimants, while washing windows in the new gymnasium of Hoke County High School, suffered injury to his right leg, breaks in two places, when the ladder on which he was standing slipped from under him; that Dr. G. W. Brown administered first aid and sent him to Highsmith Hospital, where Dr. J. F. Highsmith, Jr., attended him; and that Dr. A. L. O'Briant treated him for more than a month prior to his death on February 28, 1940. These doctors, each admitted to be an expert in medical profession, testified as to his physical condition, and as to cause of his death in pertinent part as follows:

The testimony of Dr. G. W. Brown, in substance, is as follows:

That he treated Dean Gilmore in the new gymnasium after his injury on July 17, 1939, bandaged his leg and sent him to Highsmith Hospital; that he, Gilmore, was suffering pain in his leg, but, at that time, did not complain of anything else; that he, the doctor, went to the hospital about a week afterward, and at that time Gilmore complained of pain in his stomach, suffering from retention of urine--his bladder affection; that, to question as to thecause of this retention of urine in the bladder at that time, the doctor answered, in his opinion as an expert, that Gilmore "had a mild form of cystitis, and his high arteriosclerosis, and enlarged prostate gland which all old people are subject to, which encroaches upon the stem of the bladder", which conditions were not caused by the accident; that he didn't think the fall had anything to do with causing this retention of urine in his bladder; that the accident itself did not so aggravate his condition in any way to cause it, "but being confined to the bed might have a little connection because at this time he had been used to leading an active life, and he had been confined to bed for a week--possibly something like a week at this time--and he had an extension on both his legs and possibly the close confinement could possibly have aggravated his bladder condition". And, continuing, the doctor stated that, having been his physician for twenty-five years, he had occasion to treat and examine Gilmore prior to the accident; that he treated him after he came from the hospital, until he went to Duke Hospital "about the last of October or the first of December"; removing the cast on October 17; that he did not advise his going to Duke, "but owing to his condition he had become a little childish and was begging everybody to do something for him and he wasn't getting any better and the medicine he was taking wasn't doing him any good and he wanted to go somewhere where he thought they would be able to do him some good"; that at that time the most of his complaint "was shortness of breath and pains all over the body", none of which in his (the doctor's) opinion was caused by the accident; that he, the doctor, knew that Gilmore, when last seen by him, had a disease, "general arteriosclerosis and arthritis", "which would eventually kill him"; "that his fingers were all swollen up and he had mitral-regurgita-tion of his heart"; that at that time he (Gilmore) didn't complain of his bladder; that he. was swollen considerably and he had a septic orchitis from his bladder infection; that at that time Gilmore was walking about a little on crutches, and the condition of the fractured leg was good as far as he (the doctor) could tell; that, in his opinion, he did not think Gilmore, if he had lived, would have had any permanent disability due to the "original injury by accident"; that as result of the fracture he would have had no stiffness in his joints; that "his motion was limited, but it was caused from his arthritis, and his mitral regurgitation; that his legs were swollen right considerably and caused from the condition of his heart". Finally, the doctor was asked: "So, in your opinion, this limitation of motion of the right leg was due to other causes other than the fracture? A. (Nod of the head)."

Dr. J. F. Highsmith, Jr., in summary_; testified:

Gilmore "was admitted to the hospital * * * about one hour after his accident. He had a fracture of the right tibia and fibula just below the knee and I don't recollect him complaining of anything other than his broken leg at that time. While he was in the hospital he had considerable trouble with his bladder which was due to enlarged prostate and being confined to his bed and he couldn't empty his bladder and required intermittent catherization * * * I reduced his fracture, applied a cast which I left on about six weeks. He * * * stayed in the hospital from the 17th through the 30th of July. He returned to the hospital in about six weeks, had his cast changed and at that time he had remarkably good union of his fracture for a person of his age. * * * I re-applied his cast to stay on for another month or six weeks. He came back shortly after I re-applied his cast wanting me to remove it and I wouldn't because I didn't think it was sufficient time elapsed to remove his cast, and I never saw him any more. * * * At the time he was in the hospital * * * his blood pressure was elevated. He had a marked generalized arteriosclerosis but during the time in the hospital his heart action was good, didn't show any signs of any decompensation, any failing compensation. * * * A man of his age, I should think he would have been totally disabled for a minimum of from five to six months. * * * At the rate he was going, I don't believe he would have had any disability other than probably a little limitation of motion in his knee but that was just probable * * * he was getting most remarkable results * * *".

Continuing, Dr. Highsmith testified that he was not familiar with the cause of Gilmore's death; and that Gilmore said he had not been having any bladder trouble prior to this accident. Then he gave as his opinion that "his (Gilmore's) bladder condition could have been caused from lying in bed, his inability to pass his water". The doctor said "I imagine before that time he had been getting up to pass his water just like anybody else; he wouldn't hardlyurinate lying down". Then, continuing, the doctor said that, upon examination of Gilmore, he found that he had "marked hardening of the arteries". And in reply to this question "What other chronic condition did he have, prostate condition, and bladder condition resulting, and arteriosclerosis, and what else?", the doctor said, "That is about all I remember except he was prematurely old for his age. He gave a history of past two years of suffering from attacks of palpitation of the heart, intermittently associated with pain over his heart, and dizziness and when walking a tendency to fall to the right * * * I mentioned a while ago he didn't show any failing (of his heart) in the hospital; his heart action was good. His blood pressure, however, was elevated, 154/100."

Dr. A. L. O'Briant testified substantially as follows:

That according to his records he treated Gilmore on January 15th, 18th and 19th, and also February 27th, 1940, the last being the day before he died; that this was in "his final illness"; that at the time of this treatment the cast had been removed; that he made out the death certificate, and, to best of his memory, he put on it, as the cause of death of Gilmore, chronic myocarditis and multiple arthritis; that he is sure he put chronic myocarditis, --a condition of the heart; that multiple arthritis is an arthritis in several joints instead of one; that he didn't treat Gilmore for his bladder condition; that as he recalls, Gilmore did not at that time complain of bladder trouble; that he examined Gilmore's arteries and found them sclerosed; that he examined Gilmore's leg, and, the best he could make out, his leg was apparently well, that is, quoting "I mean as far as I could see on external examination; no swelling or deformity I could make out".

Then, continuing, in answer to hypothetical questions, Dr. O'Briant, after noting a distinction between proximate cause and contributory cause, and after stating that in his opinion the accident was a contributing cause of the death of Gilmore "due to the fact that the injured man was an aged person, and the injury necessitating confinement, which in my opinion--and the age-- is detrimental to convalescence from various injuries", was asked:

"Q. Doctor, do you have an opinion satisfactory to yourself as to whether the retention of the urine caused by this bladder complication in any way tended to aggravate or make worse the chronic myo carditis you described? A. Not any more than absorption from the retention of urine; that would aggravate his myocarditis.

"Q. Do you have an opinion satisfactory to yourself as to whether the retention of the urine due to the inability to eliminate from the bladder contributed to or aggravated the multiple arthritis? A. I think it possibly did.

"Q. How about the probability of it? A. It is most probable that it did. Of course, I didn't treat him for his prostatic condition, I am assuming he had retention."

Following these questions, Dr. O'Briant stated that...