Leake County Coop. (A.A.L.) v. Barrett's Dependents, 45356

• Court: United States State Supreme Court of Mississippi
• Citation: 226 So.2d 608
• Docket Number: No. 45356,45356
• Parties: LEAKE COUNTY COOPERATIVE (A.A.L.) and Michigan Mutual Liability Company v. DEPENDANTS OF Billy Howard BARRETT, Deceased.
• Decision Date: 26 May 1969

Page 608

226 So.2d 608 LEAKE COUNTY COOPERATIVE (A.A.L.) and Michigan Mutual
Liability Company
v.
DEPENDANTS OF Billy Howard BARRETT, Deceased. No. 45356. Supreme Court of Mississippi. May 26, 1969.
Rehearing Denied Sept. 29, 1969.

Satterfield, Shell, Williams & Buford, K. Hayes Callicutt, Jackson, for appellant.

H. W. Davidson, A. R. Wright, Jr., Carthage, for appellee.

BRADY, Justice:

This is an appeal from a judgment of the Circuit Court of Leake County, Mississippi, which reversed the findings and order of the attorney referee as affirmed by the full Mississippi Workmen's Compensation Commission. The record in this case discloses the following determinative facts. Billy Howard Barrett, deceased, an employee of the appellant, Leake County Cooperative (A.A.L.), was thirty-one years of age at the time of his death on February 7, 1967. He was married and had four children whose ages ranged from six years to eight months. Subsequent to his death his

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widow remarried the deceased's younger brother, so that only his children are his dependents under the Mississippi Workmen's Compensation Act. The record discloses that he worked for approximately two years for the appellant, Leake County Cooperative (A.A.L.), hereinafter called Co-Op.

On February 7, 1967, which was a Tuesday, the business of the Co-Op was slow and the work required of employees was easier than at other times of the year. On Saturday, February 4, 1967, the deceased did not lift any sacks or do any heavy work. On Sunday, February 5, he did not work at all. On Monday, February 6, the deceased hauled one truckload of lime, which was automatically loaded and unloaded by the pushing of a button by the deceased; and subsequently he had waited on customers at the place of business of the Co-Op. The record fails to disclose that he was required to pick up, load or carry heavy sacks of materials on that date. On February 7, 1967, the deceased was required to drive an empty van type truck to Jackson, Mississippi, from Carthage to pick up a load of feed. He was traveling over Interstate Highway 55, around 7:00 o'clock in the morning, and had proceeded eight or nine miles south of Canton, Mississippi, when he passed a truck of the Mississippi State Highway Department in which were riding two employees of the State Highway Department, Mr. Chester White and Mr. Harold Barlow, who had stopped the truck to pick up flares on the highway. These two men observed Billy Howard Barrett drive the truck to the left and proceed around the Highway Department's truck, then drive back into the right lane and continue down Interstate 55 a distance of a quarter of a mile, when the truck came to a slow stop, having traveled off the paved portion a distance of approximately fifty feet. When the truck stopped, White and Barlow stopped their truck to ascertain if they could be of any help to the parties in the truck of the Co-Op. There they found the deceased leaning over to his right, inert, with fluid flowing from his mouth and a lit cigar between the fingers of his right hand. They believed Barrett to be dead and therefore notified the Highway Patrol. Highway Patrolman Billy O'Neal, performing his regular duties, came upon the truck and stopped to investigate why it had stopped on the right-of-way. He confirmed the statements of White and Barlow; and failing to find that Barrett had any pulse and observing the spotted or purple color of his face, he realized that Barrett was dead. The county authorities were notified and a coroner's inquest was held and the inquest determined that Barrett had died of natural causes.

The record discloses conclusively that Barrett, when he was fifteen or sixteen years of age, had had a severe attack of rheumatic fever, the results of which had left him with a very severe heart condition which was known to Mr. Barrett. The record also discloses that on January 12, 1967, the deceased had had a heart attack from which he almost died and that around midnight he was rushed to the hospital in Carthage, Mississippi, where he was treated by Dr. Loutrelle Stribling who thought that Mr. Barrett would die because of his severely damaged heart. There is no contention or proof that this severe congestive heart failure was in any way connected with Mr. Barrett's employment. The record discloses that Dr. Stribling, at the insistence of Mr. Barrett, released him from the hospital upon Barrett's advising him that his work activities would be very slight. The record discloses also that Dr. Stribling urged Mr. Barrett to come to him for penicillin injections to aid in alleviating his congestive heart condition.

Several witnesses who testified for the appellees stated on cross-examination that the driving of the empty truck was not difficult, that it was easy and did not require exertion. There was testimony to the contrary by witnesses who likewise were placed on the witness stand by the appellees. Dr. Stribling, the only non lay witness offered by appellees, testified that he thought anything the deceased did would

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have contributed to his death and therefore he thought 'that anything he was doing could (have) possibly or very likely contributed to his death.' Dr. Stribling categorically declined to say what percentage he thought the work activities combined with the preexisting heart condition to produce the death of the deceased, but stated that he could not tell. The record shows that Mr. Barrett had an enlarged heart, two severely damaged valves with a forceful apical beat, and a very loud diastolic murmur at the mitral and aortic areas. There is no proof in the record as to what percentage his preexisting heart condition contributed to his heart failure. Dr. Stribling did testify that he had a small reserve of heart strength.

Dr. William H. Rosenblatt, a cardiologist, testified in behalf of the appellants stating that Mr. Barrett died from an acute left-sided heart failure secondary to a severe rheumatic heart disease, particularly aortic regurgitation and mitral stenosis. He testified that there was no causal connection between the employment and the death of the deceased. Dr. Leo Elston, a cardiologist at the Veterans' Administration Hospital, also testified that the deceased died from acute pulmonary edema due to failure of the left ventricle. He testified that there was no causal relationship between the employment of the deceased and his death. The attorney referee found that Mr. Barrett did not suffer a compensable injury and death within the meaning and scope of the Mississippi Workmen's Compensation Act. The appellees petitioned the Mississippi Workmen's Compensation Commission for a full review, and the decision of the attorney referee was affirmed by the full commission. Thereupon, appellees appealed to the Circuit Court of Leake County, which court reversed the decision of the full commission, holding in substance that the testimony presented on behalf of appellees in this cause clearly established the fact that the work requirements of the deceased's job and the performance of his duties at the time of his death as outlined by lay witnesses, together with the medical testimony of Dr. Loutrelle Stribling, established a causal connection between the work in which the deceased was engaged at the time of his death and his heart failure. The circuit court in reversing the decision of the full commission permitted the appellees to recover, but failed to apportion the award in proportion to the preexisting condition. Appellants thereupon duly appealed to this Court.

Although appellants concede that there is only one issue, namely, 'whether or not the deceased's fatal attack was causally connected to his work,' nevertheless, appellants urge the commission of two errors because of which the judgment of the circuit court should be reversed, i.e., (1) that the findings of the full commission are supported by substantial evidence and therefore should be reinstated, and (2) that the circuit court has substituted its opinion in lieu of the findings of the commission.

The cases cited by the appellants clearly state the basic rule followed many times by this Court in affirming the findings of the commission, which is that where there is substantial evidence the findings of the full commission will not be disturbed. There are, however, numerous instances in compensation cases involving heart problems where this Court has refused to follow arbitrarily the findings of the commission. L. B. Priester & Son, Inc. v. Dependents of Bynum, 244 Miss. 185, 137 So.2d 907, 141 So.2d 246, sugg. of error overruled 142 So.2d 30 (1962); Holman v. Standard Oil Co., 242 Miss. 657, 136 So.2d 591 (1962); Shannon v. City of Hazlehurst, 237 Miss. 828, 116 So.2d 546 (1959); Winters Hardwood Dimension Co. v. Harris' Dependents, 236 Miss. 757, 112 So.2d 227 (1959); Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So.2d 357, 113 So.2d 667 (1959); Goodnite v. Farm Equip. Co., 234 Miss. 342, 103 So.2d 391, 104 So.2d 298, 106 So.2d 383, 683 (1958). In Central Electric Power Association v. Hicks, 236 Miss. 378, 110 So.2d 351, 112 So.2d 230 (1959), from which we

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quoted in Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So.2d 357, 113 So.2d 667 (1959), we pointed out:

The general rule is that a decision of the commission on disputed issues of fact will be affirmed, where there is substantial and reasonable evidence in the record to support the commission's findings of fact. As an abstract statement, that rule is correct, but it means nothing apart from the statutory standards and the judicial standards based upon the statute which have been established in a large number of cases in recent years. (Emphasis added.) 236 Miss. at 388, 110 So.2d at 356.

The rule has been established by Mississippi case-law and applied in numerous Mississippi workmen's compensation cases that when 'an employee is found dead at a place...