Johnson v. Bear Brand Roofing, Inc.

• Decision Date: 22 May 1961
• Docket Number: No. 5-2420,5-2420
• Citation: 346 S.W.2d 472,233 Ark. 639
• Parties: Joe JOHNSON, Appellant, v. BEAR BRAND ROOFING, INC., et al., Appellees.
• Court: Arkansas Supreme Court

Page 472

346 S.W.2d 472

233 Ark. 639

Joe JOHNSON, Appellant, v. BEAR BRAND ROOFING, INC., et al., Appellees.

No. 5-2420.

Supreme Court of Arkansas.

May 22, 1961.

Paul K. Roberts, Warren, for appellant.

Shackleford & Shackleford, El Dorado, for appellees.

McFADDIN, Justice.

This is a Workmen's Compensation case. The Referee, in the first instance, and the Full Commission, on review, disallowed the claim of appellant Joe Johnson. The Circuit Court affirmed the Commission; and the case is here on appeal. Several points are argued, but our reversal is because of the error of the Referee and the Commission in refusing to consider a hypothetical question and the answers thereto.

Appellant, Joe Johnson, aged 59 and weight about 135 pounds, was employed by appellee, Bear Brand Roofing, Inc., as a truck driver, and had been so employed for several years. The truck was a 5-ton semitrailer truck. On Sunday, February 21 1960, the truck was more than half filled ¹ with rolls of roofing and siding; and, in accordance with instructions, Johnson drove the truck from Bearden, Arkansas to deliver the roofing and shingles to purchasers in Tennessee. In addition to the ordinary travel time, some time was lost en route because of the necessity of repairs to the lighting system of the truck; and, at midnight, Johnson arrived in Clarksville, Tennessee, where the first shipment was to be delivered. He slept in the sleeping compartment of the truck until about 5:30 A.M. Monday morning, February 22nd, when he awoke and obtained breakfast.

Johnson finally located the Clarksville consignee, W. H. Hall Company; and, since that company was 'short of hands,' Johnson helped with the unloading. The rolls of roofing were three and one-half or four feet high and were standing on end in the truck, and each roll weighed between fifty and seventy pounds. Johnson's work in the unloading consisted in laying the rolls down on the truck and rolling them to the rear of the truck where other laborers would take them. Approximately an hour was consumed in unloading roofing and siding at the warehouse. Then Johnson, at the request of the foreman of the consignee, drove the truck to a motel construction site and unloaded in the same manner 130 additional rolls of roofing.

After thus unloading the shipment in Clarksville, Johnson started to Eaglesville, Tennessee to deliver his next consignment. While he was still in the city limits of Clarksville, he felt a sensation which he described as if the tie rods of the truck were dragging and he could not turn the wheel. The truck went back and forth across the road and finally left the highway and struck a utility pole. Two Tennessee Troopers witnessed the mishap. Johnson was in a state of semiconsciousness and the Troopers forced his hands from the wheel of the truck. He was taken by ambulance to a Clarksville hospital where he remained approximately four weeks. His attending physician in Clarksville, Dr. James L. McKnight, noted on the report which was introduced in evidence that Johnson was hospitalized because of, 'Cerebral Thrombosis with paralysis of extremities of the left side while driving a truck'; and that the injury would be permanent in that there was paralysis of the left side. 'Arteriosclerosis' was listed as a contributing factor to what occurred. Dr. McKnight further stated: 'The only significant past history was that of frequent headaches in the past for years.' On March 18, 1960, Johnson was transferred from the Clarksville, Tennessee hospital to the Ouachita County Hospital at Camden, Arkansas, where he remained for two weeks under the care of Dr. John P. Thompson.

At the time of the hearing before the Commission on October 3, 1960, Johnson was still disabled; and it was stated that he would probably be disabled for life. He filed his claim for total permanent disability. The claim was denied, both by the Referee and the Full Commission, because the claimant had not 'sustained the burden of proof that is upon him to establish a causal connection between his cerebral thrombosis on February 22, 1960, and his work for respondent employer.' ² In order to establish a causal connection between the work and the cerebral thrombosis, Johnson's attorney called Dr. R. B. Robbins of Camden, Arkansas, who answered the hypothetical question, but the answer was entirely ruled out by the Referee and the Full Commission. We hold that the hypothetical question was proper and the answer should have been considered.

The qualifications of Dr. Robbins were admitted; he stated that he had examined Johnson on June 3, 1960; found him suffering with a paralysis of the left side of his body; that Johnson was then disabled and would probably be permanently disabled; and that the paralysis was caused by a brain injury that is commonly known as a vascular accident. The first hypothetical question asked Dr. Robbins began: 'Doctor, assuming that a man who was fifty-nine years old and who has a medical history of having arteriosclerosis ³ * * *.' This question was objected to on several grounds, but the Referee sustained the objection on the ground that the only history of arteriosclerosis was contained in Dr. McKnight's report as a contributing cause, which did not show the arteriosclerosis to have pre-existed the injury. The Referee said: 'There is nothing in the history of this case at all in regard to arteriosclerosis.'

With the objection thus sustained--and even assuming the Referee was correct in his ruling regarding arteriosclerosis--the attorney for Johnson made his record by asking Dr. Robbins this hypothetical question and receiving the answers as shown:

'Q. Assuming that a man who is fifty-nine years old, Doctor, who weighs approximately one hundred and thirty-five pounds were to drive a four ton semi-trailer truck loaded with three tons of roofing from Bearden, Arkansas, leaving there at ten o'clock in the morning and driving with a few interruptions until twelve that night and arriving, say, in Clarksville, Tennessee and assuming that this driver would then go to bed and sleep for five and a half hours and assuming that he would then get up and in the course of a couple of hours would begin unloading rolls of felt and other materials which would weigh from sixty to seventy pounds each and would unload possibly one hundred to two hundred of these rolls and then at about ten thirty or eleven o'clock would suffer a vascular accident or hemiplegia which you have described, would in your opinion his activity...