Hemphill v. Tremont Lumber Co.

• Decision Date: 11 February 1946
• Docket Number: 37821.
• Citation: 25 So.2d 625,209 La. 885
• Court: Louisiana Supreme Court
• Parties: HEMPHILL v. TERMONT LUMBER CO.

25 So.2d 625

209 La. 885

HEMPHILL v. TERMONT LUMBER CO.

No. 37821.

Supreme Court of Louisiana

February 11, 1946

Rehearing Denied March 18, 1946.

Certiorari to Court of Appeal, Second Circuit.

Julius T. Long, of Shreveport, for plaintiff appellant, relator.

Theus Grisham, Davis & Leigh, of Monroe, for defendant.

FOURNET Justice.

The relatrix Mrs. Edith Guin Hemphill, individually and for the benefit of her minor child, seeks to recover compensation from the Tremont Lumber Company under the Employer's Liability Act, Act No. 20 of 1914, for the death of her husband, who succumbed from a heart attack allegedly resulting from overheat and strenuous work during the course of his employment. The case is now before us on a writ of certiorari granted upon her application to review the judgment of the Court of Appeal for the Second Circuit affirming the judgment of the district court dismissing her suit.

Up until the afternoon of April 27, 1943, when he was suddenly stricken with a severe pain in the region of his heart that continued unabated until he died some forty-five minutes later, Thomas W. Hemphill, who had been employed by the defendant as a carpenter for some 20 years, was never known to have been seriously ill or to have suffered from heart trouble. He was 49 years old, weighed between 150 and 160 pounds, and was rather stockily built. On the morning of his death he left his home in the company of his brother-in-law, Ed Guin, as was his custom, to commute in Guin's car to his place of employment some six or seven miles away, taking with him a lunch prepared by his wife. Upon his arrival at work he and a fellow employee, Odus C. Lasyone, were assigned to re-roof a small house belonging to the defendant under the supervision of a foreman. To accomplish this purpose it was necessary for Hemphill and Lasyone to lay, tack and tar composition paper that was carried to the roof by them up a 12 or 13 foot ladder in rolls weighing between 90 and 100 pounds. Eight of these rolls were used in all, Hemphill and Lasyone each carrying two of the rolls to the roof in the morning and two after the noon hour, during which they took time out to eat their lunches. After the last of the rolls had been laid and tarred, some thirty minutes after Hemphill had taken the roll to the roof, the deceased came down the ladder wet with perspiration, took a drink of water from an ice keg, and sat down in the shade, holding his hand over his heart and declaring to his co-workers that he had a pain in that region. After sitting for a few minutes he declared the pain was no better and that he ought to go to the doctor's office. He then took another drink of water and walked a half or two-thirds of a mile down the road to the doctor's office, saying, upon his arrival there, 'Doctor, do something for me, I am dying.' The doctor thereupon put him on a table in one of the rooms and gave him a 1/4th of a grain of morphine and a 1/150th of a grain of atrophine. Then, upon Hemphill's suggestion that 'if he could belch he would feel better,' and his reply to the doctor's query that he had had milk and corn for lunch, the doctor gave him diluted hydrochloric acid and pepsin without asking him any further questions or examining him. Hemphill died soon thereafter while on the way to his home in the car of Guin, who had been summoned by the doctor. An inquest was held by the coroner and the cause of Hemphill's death was given as 'improper function of his heart.'

According to his written opinion, the trial judge was unable to determine from the testimony introduced at the trial whether Hemphill's death had been caused by indigestion, angina pectoris, a clot of blood in the heart artery, or strenuous work, and he therefore dismissed the plaintiff's suit.

The Court of Appeal affirmed this judgment, being of the opinion that the relatrix had failed to establish the cause of her husband's death with legal certainty or to show that his death was brought about or accelerated by any act done by him during the course of his employment.

Since this case does not involve an accident causing external injuries or producing objective symptoms, we must look to the testimony of the medical experts to determine whether this is one of those cases that comes within our well-settled jurisprudence that the legal requirements are present to constitute an accident and an injury is compensable where excessive heat, heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition. See, Craft v. Gulf Lumber Co., 151 La. 281, 91 So. 736; Hicks v. Meridian Lumber Co., 152 La. 975, 94 So. 903; Jackson v. Travelers' Ins. Co., 180 La. 43, 156 So. 169; Wright v. Louisiana Ice & Utilities Co., 19 La.App. 173, 138 So. 450; Richey v. Union Paving Co., La.App., 151 So. 657; Brister v. Miller, La.App., 178 So. 284; Ozbolt v. Weber-King Mfg. Co., La.App., 193 So. 383; and Murray v. Mengel Co., La.App., 9 So.2d 818.

As pointed out by the Court of Appeal, 'There is little testimony on the part of the lay witnesses in this case which is of material assistance to the Court in deciding the issues involved. * * * the testimony of these witnesses has definitely established the fact that the deceased began to suffer suddenly from a severe and agonizing pain in the chest, but * * * the record discloses nothing within the knowledge of these witnesses which would tend to establish any cause for decedent's suffering.' We also agree with the finding of that court that the contention urged on behalf of the plaintiff that the ice water may have caused or contributed to Hemphill's death and the claim made by the defendant that his death resulted from acute indigestion are not supported by the record. But our appreciation of the testimony given by the medical experts, three of whom testified in behalf of the plaintiff and two in behalf of the defendant, does not coincide with that of the appellate court in the weight given to the testimony of the plaintiff's medical experts or in the conclusion reached by it with respect thereto.

We think the overwheliming preponderance of the evidence shows that the strain on Hemphill's heart because of the strenuousness of the work and the heated conditions under which he was working were the motivating causes of his death. This was the unqualified and unanimous conclusion of all three of the plaintiff's expert witnesses and their testimony was not in any way weakened or refuted by the defendant's medical experts. In fact, there is evidence in their testimony corroborative of the conclusion reached by plaintiff's experts, as will be disclosed by an analysis thereof.

The error into which the Court of Appeal fell is very readily and easily detected for a mere reading of the testimony of the medical experts will show that that court's reason for not giving any weight to the unanimous conclusion of the experts for the plaintiff is based on a false premise.

We fail to see how the Court of Appeal reached its conclusion that the testimony of Dr. D. V. Donaldson should be given little weight because he 'could not definitely assign any specific type of heart trouble as the cause of death,' for a review of his testimony discloses that he never expressed an opinion as to the different types of heart trouble or that he was ever interrogated with respect to them either on direct or cross-examination. The same may be said...