Hathaway v. New Mexico State Police, 5617

• Decision Date: 14 November 1953
• Docket Number: No. 5617,5617
• Parties: HATHAWAY v. NEW MEXICO STATE POLICE et al.
• Court: New Mexico Supreme Court

Page 690

263 P.2d 690

57 N.M. 747

HATHAWAY v. NEW MEXICO STATE POLICE et al.

No. 5617.

Supreme Court of New Mexico.

Nov. 14, 1953.

On Rehearing Dec. 15, 1953.

Simms, Modrall, Seymour, Simms & Sperling, Albuquerque, for appellants.

Joseph L. Smith, Lorenzo A. Chavez, Albuquerque, for appellee.

Richard H. Robinson, Atty. Gen., Santa Fe, amicus curiae.

SADLER, Chief Justice.

This is an appeal by defendants (appellants), the employer and insurer, from an award to plaintiff (appellee) of the sum of $30 weekly for a period of 550 weeks commencing on January 8, 1952, for and on account of total and permanent disability found to have been suffered by claimant through an accident arising out of and in the course of his employment on the date above mentioned. The trial of the facts was before a jury, instructed by the court as to the law in a manner satisfactory to both parties, in so far as any error assigned by either of them before this Court is concerned. It is from the judgment entered by the court on a verdict favorable to the claimant that the defendants prosecute the present appeal. The following facts were before the jury in reaching its verdict.

The claimant at time of the injury complained of was 44 years of age and had been a member of State Police force since 1935 except for a short tour in the Navy in 1944. Following discharge from the Navy by reason of varicose veins bilateral, a condition unrelated to heart disease, records of periodical examinations at vetterans' hospitals disclosed claimant's weight as ranging between 165 to 170 pounds and his blood pressure as normal up to and including his last examination on August 16, 1951.

Since June 1, 1951, he had been captain in charge of 12 officers of New Mexico State Police in the Albuquerque district where he resided. His usual office hours were from 7:30 to 8:00 in the morning to 5:00 to 6:00 o'clock at night, though he was on 24-hour call. His duties were mainly supervisory and included executive, administrative, investigative and instructive work. Holding the rank of captain, as he did, he had engaged in the type of work he was doing the night of January 8, 1952 'very infrequently.' Leaving his desk at headquarters and going out to lead a party searching for a fugitive was an unusual incident in the normal, everyday performance of his duties and was described by claimant as an 'emergency proposition.' There was no one else available to go up that night to aid in the search except Patrolman Dennis, so claimant went himself.

The claimant had always been very active, doing more than his share of the work and was considered by the Chief of State Police as one of the best officers on his force up to time of the injury complained of. Until then, except for the varicose veins for which he was receiving a $15 per month disability allowance from the government, and save for an attack a month previously of some sort, which produced a severe pain in the stomach from which he quickly recovered without aid of a doctor, the claimant described himself as 'very rugged' at time of the questioned injury suffered the night of January 7, 1952. At about 11:30 that night he undertook to aid a rookie policeman in the search for an unidentified man who had escaped from the patrolman some thirty minutes earlier on U. S. Highway 66 east of Albuquerque in Tijeras Canyon.

The searching party was composed of one city and two state patrol cars, including claimant's. The party began the search about 11:30 p.m. on January 7, 1952, and it continued until 2:30 or 3:30 a.m. on the 8th. The claimant himself was driving a State Police car, accompanied by City Policeman Bradstreet. They drove southwest from near the Four Hills Ranch south of Highway 66. Conducting a hurried search of that area, a hilly country cut by arroyos, they covered about one mile and a half in the rocky, sandy terrain, difficult to traverse and did so on foot much of the time.

Shortly before the search was concluded, claimant's car became stuck in a sandy arroyo from which he extricated it by shoveling sand from around the wheels of the car. Some minutes after shoveling his car free from the sand the claimant appeared pale, with beads of perspiration standing out on his face and to a companion seemed abnormal in appearance and demeanor. When the search was concluded, which was about 3:00 a.m. on January 8, 1952 the claimant, as observed by Sergeant Dennis, was in the condition described below, to wit:

'A. (His appearance) was not normal. That was very apparent. He was quite flushed, and was having difficulty in breathing; he was kind of panting, and I, in a kidding nature, asked him if he had run from the highway up there. He said, no, the car was right out there, he was just out of wind, and never had been able to get his breath back. He was having some difficulty in breathing, and we talked a little longer, and when we parted, I was going home, and as far as I knew, he went home. I told him that I would see him the next morning, and he said yes. He said, 'I will be there' he said, 'I might be a little late.' He said, 'I sure don't feel good.' I said, 'Well, you are just getting old.' He said he was having some pain in his chest, and a little trouble breathing. Now, that was the conversation, in substance, not verbatim, but in substance.'

True to his prediction, he was late in arriving at work next morning. Indeed, it was mid-forenoon before he arrived. He appeared listless, did little work that day and left the office from an hour and a half to two hours before quitting time. He went directly home and to bed and remained there until about 1:00 a.m. of the 9th when, following a heart attack, he was taken to St. Joseph's Hospital in an ambulance. He was released from this hospital and returned home on January 12th following. He was at home only two days when he was again hospitalized by being taken to Southwestern Presbyterian Hospital where he remained for about a month.

The claimant visited his office on three or four occasions between January 8, 1952, and May 14, 1952, the trial date. He was not able to drive a car, but conferred with officers when they called him for advice and checked reports on a few cases. He received his regular salary but no compensation. Dr. Walter I. Werner of Albuquerque who attended claimant on January 9, 1952, and specializes in diseases of the chest, which includes the heart and lungs, diagnosed his trouble as that of angina pectoris, a cardiac condition. The attending physicians prescribed a dose of vasolidator which he takes constantly as well as taking oxygen and nitro-glycerine in times of stress. He spends most of his time in bed.

There seemed an agreed view among the medical experts who testified that the unusual strain or excitement, both physical and mental, of January 8, 1952, which claimant had experienced, either precipitated, or was the predisposing, or immediate, cause of the acute attack on the 9th which produced his disability. They likewise testified and the jury found that he was totally and permanently disabled. It was upon a verdict for claimant based on the foregoing facts that the court entered the judgment appealed from.

Counsel for the respective parties have filed exhaustive briefs and have argued the case orally upon submission. Many cases from our own and other jurisdictions have been cited and most of them analyzed. We find it unnecessary, however, to enter upon an extended discussion and exposition of these cases, especially those from other jurisdictions, since we are convinced that this case, on its merits, is to be governed by principles laid down in a few of our own earlier decisions. We have only to apply those principles to resolve the main question presented on this appeal. The cases we have in mind, each of which lends support, in greater or lesser degree, to our conclusions are Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1; Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342; Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263; Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002, and Aranbula v. Banner Mining Co., 49 N.M. 253, 161 P.2d 867.

In Christensen v. Dysart, supra, an employee of the defendant, Dysart, was killed in a fall from a platform on which he stood while at work as a carpenter reroofing a house. He had been complaining of heart trouble, and his ailment had been diagnosed by a physician some weeks earlier as coronary thrombosis. It was insisted by defendant that the decedent died of heart disease, rather than from the fall itself which fractured two ribs, one of them puncturing a lung, and the fall also inflicting a bruise on the head. He died a few moments after the fall. We held there was substantial evidence to support the trial court's finding that decedent's death resulted from the fall as an accident arising out of and in the course of his employment. We said this was true even though the fall may have been occasioned, or precipitated, by the preexisting heart ailment and there was some evidence that it was so caused. We quoted with approval from an authority cited in Industrial Commission v. Nelson, 127 Ohio St. 41, 186 N.W. 735, as follows:

'Some cases hold that where an employee is seized with a fit and falls to his death the employer is not liable because the injury did not arise not of the employment; * * * but a majority of the courts, American and English, hold that if the injury was due to the fall the employer is liable even though the fall was caused by a pre-existing idiopathic condition.' [42 N.M. 107, 76 P.2d 4.]

Again, in Christensen v. Dysart, we quoted approvingly from Hill v. Thomas S. Gassner Co., 124 Pa.Super. 217, 188 A. 382, as follows:

'Death in the ordinary course of employment, resulting from strain upon the heart caused by unusual exertion, is an accident within the meaning of the workmen's compensation statutes. * * * On the other hand,...