Howey v. Babcock & Wilcox Co.

• Decision Date: 27 November 1973
• Docket Number: No. 46145,46145
• Citation: 516 P.2d 821
• Parties: In the Matter of the Death of Aden Russell HOWEY, Lillie May Howey, Petitioner, v. The BABCOCK & WILCOX COMPANY, Respondent, Travelers Insurance Company, Insurance Carrier.
• Court: Oklahoma Supreme Court

Page 821

516 P.2d 821

In the Matter of the Death of Aden Russell HOWEY, Lillie May

Howey, Petitioner, v. The BABCOCK & WILCOX COMPANY, Respondent, Travelers Insurance Company, Insurance Carrier.

No. 46145.

Supreme Court of Oklahoma.

Nov. 27, 1973.

Bert M. Grigg, Dean H. Smith, Tulsa, Larry Derryberry, Atty, Gen., Oklahoma City, for petitioner.

Sanders, McElroy & Carpenter, Jerry H. Holland, Tulsa, for respondents.

BERRY, Justice:

Lillie May Howey, hereafter claimant, filed From 3--A as surviving wife and sole dependent, seeking award of statutory death benefits, 85 O.S.1971 § 22, by reason of death of Aden Russell Howey while engaged in covered employment.

Only claimant introduced evidence at the hearing, and the trial judge reserved ruling on respondents' demurrer to this evidence. Thereafter, (June 27, 1972) the trial judge entered an order finding deceased died as result of heart attack aggravated and precipitated by work performed in course of hazardous employment with respondent, and awarded claimant death benefits. Appeal to State Industrial Court en banc resulted in affirmance of the award and respondents perfected this proceeding for review.

Contentions advanced as grounds for vacating this award attack sufficiency and quality of claimant's evidence to sustain an award. Whether decedent suffered accidental injury arising in couse of employment is a question of fact for State Industrial Court determination. Kerr-McGee Corp. v. State Industrial Court, Okl., 474 P.2d 411. In this posture the Supreme Court will examine the evidence only to ascertain whether the award is supported by any reasonable competent evidence. Blue Bell, Inc. v. Owens, Okl., 463 P.2d 969. Because the record is examined only for this purpose extended recitation of evidence is unnecessary.

Deceased was a boiler maker, engaged as working foreman over respondent's four man crew engaged in boiler repair, had no known heart condition, and was not ill prior to leaving for work. On May 9, 1970, the crew reported to a power plant site to begin work repairing a boiler leak. This boiler, approximately 140 feet hign and 80 feet square, contained tubes which supported the walls and top, as well as providing support for metal covered, insulated outer walls. The interior fire box accommodated approximately 30 square feet of open floor space which contained no tubes. This area was accessible through a small (8 inch) crawl space, provided by bending of vertical tubes. Temperature inside the boiler was very high, and the tubes were so hot they could only be touched momentarily with gloved hands.

Upon arrival the crew was advised as to area of the leak. About 8:00 A.M. the crew entered the boiler, using a flashlight, and then strung electric lights to aid the work. One man (Pittser) left the boiler to procure replacement for a broken light bulb, but deceased remained inside for approximately 30 minutes. Repair of the leak could not be made from inside and the crew then went outside and erected scaffolding 10--12 feet high, removed the outer covering and insulation, and prepared to weld the leak. About 9:30 A.M. deceased climbed the scaffold to speak with Pittser, climbed down and walked away out of Pittser's view. Another worker (Pullen) immediately ran back and reported deceased had fainted.

Deceased and Pullen were standing north of the boiler discussing whether water dripping from above was the other leak which was being hunted. Deceased pointed upward, then grabbed his face and fell backward, but was caught and laid on the ground by Pullen, who ran back and reported deceased had fainted.

Others of the crew descended the scaffold and went to deceased, removed his glasses and dentures and raised his shoulders, and opened his clothing to the waist in order to massage the heart while starting mouth to mouth resuscitation. A resuscitator also was applied without success. Deceased had sweated profusely, so that both his coveralls and khakis worn underneath were wet. An ambulance removed deceased to a Claremore hospital where the admitting doctor, acting as County Medical Examiner, pronounced him dead on arrival, cause of death being listed as acute myocardial infarction. Some circumstantial evidence provided basis for inferring deceased possibly had entered the boiler a second time. Other than medical evidence mentioned hereafter, the foregoing statement discloses evidentiary matters surrounding deceased's demise.

Three contentions advanced as grounds for vacating this order attack sufficiency and quality of the evidence to sustain an award. Cause and extent of disability resulting from accidental injury are questions of fact exclusively for determination of State Industrial Court, whose findings are conclusive and binding on appellate review. Kerr-McGee Corp. v. State Industrial Court, supra. In this posture the Supreme Court is not authorized to weigh evidence to determine preponderance thereof, but considers only whether there is any reasonable competent...