Hamer v. Rishel

• Decision Date: 28 February 1942
• Docket Number: 39-1941
• Citation: 24 A.2d 664,147 Pa.Super. 585
• Parties: Hamer, Appellant, v. Rishel
• Court: Pennsylvania Superior Court

24 A.2d 664

147 Pa.Super. 585

Hamer, Appellant, v. Rishel

No. 39-1941

Superior Court of Pennsylvania

February 28, 1942

Argued October 29, 1941.

Appeal from judgment of C. P. Clearfield Co., Sept. T., 1940, No 346, in case of Mrs. Kathryn Hamer, nee Rishel, v. Ashley Rishel.

Appeal by defendant from award of Workmen's Compensation Board.

The facts are stated in the opinion of the Superior Court.

Appeal sustained and judgment entered for defendant, opinion by Smith, P. J. Claimant appealed.

Error assigned, among others, was judgment of court below.

Judgment affirmed.

Frank G. Smith, with him Robert V. Maine, of Smith & Maine, and William C. Chase, for appellant.

John M Reed, with him John C. Arnold, of Arnold & Chaplin, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes and Hirt, JJ.

OPINION

Cunningham, J.

The employer in this workmen's compensation case, Ashley Rishel, was the father of the deceased employee, Walter Rishel, who died on June 22, 1936, from "rheumatic heart disease." Decedent and two brothers were employed by their father as carpenters. His widow, Kathryn Rishel claimed compensation for herself, and two young children, upon the theory that during the course of her husband's employment on March 10, 1936, his preexisting heart disease was so aggravated by the "exertion" put forth by him in carrying certain wooden doors from one part of a building to another that his death was "accidental" within the meaning of Section 301 of our Workmen's Compensation Act of June 2, 1915, P. L. 736, 77 PS §§ 411, 431. The employer's insurance carrier denied liability upon the ground that her husband's death was not attributable to any "injury by an accident" within the intendment of the statute, but had resulted from the normal progress of the heart disease with which he had been afflicted for years.

As the result of several hearings before referees and appeals to the board, an award was made to claimant and affirmed by the board. By reason of the remarriage of claimant in 1939, the award was modified to meet that change in her status.

Upon the appeal of the carrier to the common pleas, its exceptions to the action of the board were sustained and judgment was entered in favor of the employer and insurance carrier; this appeal by the claimant from that judgment followed.

In an able opinion by Smith, P. J., of the court below, supporting the judgment appealed from, the only question of law involved was accurately stated and the evidence fully and fairly summarized in the following language:

"The sole question in the case is whether or not Walter Rishel died as a result of an accident in the course of his employment within the meaning of the Workmen's Compensation Act.

"There is no substantial dispute about the facts. Walter Rishel was an employee of his father, Ashley Rishel, a building contractor in Clearfield. For a period of some years Walter Rishel had worked for his father as a carpenter. During a considerable period prior to his injury he had done office work for the defendant, but due to shortage of work and contraction of the defendant's organization consequent thereto, it was necessary for him to be employed as a carpenter on jobs, rather than at office work. He worked on at least two such carpenter jobs for defendant during a period of several months prior to the injury. The testimony of decedent's brother, Preston Rishel, indicates that while he was given somewhat lighter work latterly than those regularly working as carpenters, he had been accustomed to and actually did work ordinarily done by carpenters.

"On March 10, 1936, the decedent was working in a house or apartment building known as the Dr. S. S. Davis house in Clearfield. He was particularly engaged in cleaning up materials which had accumulated in a part of that building. It was necessary for him in so doing to carry some doors from one part of the building to another part, which involved going through several rooms and passageways and up and down several stairways, a total carrying distance testified to of about 180 feet. The doors were testified to as weighing 70 to 80 pounds each. He made three trips, one with each door. After carrying the third door he complained to his brother, Preston Rishel, that while carrying it he had a burning sensation in his chest, and that he felt ill. He then desisted from work the rest of the day, remaining, however, about the Davis house for some time and attempting to help his brother in guiding the carrying of other materials; having expectorated blood and continuing to feel ill, he was taken home during the afternoon and a physician was called in the evening. The physician found he had suffered a hemorrhage of the lungs. He remained ill continuously and in the charge of physicians until June 22, 1936, when he died.

"A postmortem examination was made and it showed, in the opinion of physicians both of the claimant and defendant, that there was a valvular heart condition of long standing. The report of the autopsy, which was filed with the testimony, shows: 'Cause of Death: Rheumatic Heart Disease.' 'Clinical Diagnosis Mitral Stenosis with Hypertrophy. Dilatation and Failure.' At the conclusion of the report was contained the following, under the heading, Notanda: 'Death was due to dilatation and failure of a hypertrophied heart, resulting from an old rheumatic heart disease with stenosed and insufficient heart valves. The dense fibrosis and calcification of the mitral valve gives evidence of long chronicity. The terminal chronic passive congestion of lungs, liver, spleen was at least a matter of months.'

"The testimony of the doctors at the hearing was that there was a valvular blockage in the mitral...