Little v. J. Korber & Co.

• Decision Date: 21 January 1963
• Docket Number: No. 6992,6992
• Parties: Clara D. LITTLE, dependent widow of Irving E. Little, deceased, claimant, Plaintiff-Appellee, v. J. KORBER & CO., Employer, and U.S. Fidelity & Guaranty Co., insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 119

378 P.2d 119

71 N.M. 294

Clara D. LITTLE, dependent widow of Irving E. Little, deceased, claimant, Plaintiff-Appellee, v. J. KORBER & CO., Employer, and U.S. Fidelity & Guaranty Co., insurer, Defendants-Appellants.

No. 6992.

Supreme Court of New Mexico.

Jan. 21, 1963.

Keleher & McLeod Russell Moore, Albuquerque, for appellants.

Smith, Kiker & Kitts, Richard E. Ransom, Albuquerque, for appellee.

CHAVEZ, Justice.

This appeal is from a judgment in favor of plaintiff-appellee, the dependent widow of Irving E. Little, deceased, on her claim filed under the Workmen's Compensation Act. The case was tried by the district court of Bernalillo County, without a jury.

Irving E. Little, age 59, had been employed by J. Korber & Co., a hardware concern in Albuquerque, for some fifteen years as manager of the wholesale department. His duties entailed buying and selling merchandise, keeping three outside salesmen supplied with goods, and supervising the catalogue operations, as well as supervising retail sales.

On June 5, 1959, between the hours of 8:00 and 9:00 a. m., Mr. Little came to the office of Edward H. Bierman, the office manager, 'storming and was quite upset' because one of the clerks had made an error in a charge ticket. Bierman told Little not to become concerned, that he, Bierman, was busy and that Little should make the correction and forget it. On this occasion Little tore open the package containing charge tickets and took them all to his office, including the erroneous charge ticket. Little corrected the erroneous charge ticket and, within fifteen minutes, he returned to Bierman's office. According to Bierman, Little 'seemed to be perfectly all right after that. I didn't pay too much attention.' Little left Bierman's office and was not seen by Bierman after that until Bierman was called out and informed that Little had fainted. At approximately 10:20 a. m., Little died, at or near his desk, of a myocardial infarction due to arteriosclerotic heart disease which was due to a generalized arteriosclerosis.

The hardware store in which Little worked was on a three-story level, although there was no merchandise on the third floor. Between the floors there were steps or stairs. Little frequently walked up and down the stairs between the main and mezzanine floors, carrying cumbersome bundles of plastic pipe which weighed from 15 to 20 pounds. The stairs between the ground and mezzanine floors consisted of twelve steps and were approximately twelve feet in total height.

Bierman testified: That during the last six or eight months of Little's life he observed Little limping and that he complained of pain in his leg; that in the two-week period preceding Little's death, Bierman saw Little coming down the steps very slowly, carrying plastic pipe from the mezzanine floor; that on occasion Little appeared to have trouble negotiating these steps, even when not carrying pipe; that Little would hold onto his side and walk with a slight limp; that Little limped more often when he was emotionally upset. Bierman further testified: That Little 'would go along and be very even tempered and then all of a sudden why he would get into some of those explosive moods' and 'shake with anger and become very visibly upset;' that this occurred more frequently during the last two years of Little's life; and that Little worried quite a bit about his work and often complained about sales.

During the last two or three months of his life, Little was much more tired when he came home from his work at night. He had not had a vacation for three years prior to his death. Upon his return from the last vacation, he and Mrs. Little both worked evenings at the store for three weeks to catch up on work that had not been attended to during his two weeks' vacation. In his work Little would become greatly concerned over small incidents and was subject to apparent fits of temper. Complaints of irritability and excitability were frequently made by other personnel at the store.

Appellants' only contention is that the trial court's finding, that the death of claimant's decedent was caused by an accident arising out of and in the course of his employment, is not supported by substantial evidence.

The trial court made the following findings:

'3. That between the hours of 8:00 and 9:00 A.M., on June 5, 1959, Little, in the course of his employment, became emotionally upset and as a result thereof died at approximately 10:00 A.M., of a myocardial infarction due to arterio-sclerotic heart disease.

'4. That Little suffered an accident arising out of and in the course of his employment, which was the cause of his death.'

Mr. Little's medical history discloses that for some twelve years preceding his death he had undergone numerous examinations at the Lovelace Clinic in Albuquerque, during which he complained of unusual fatigue, shortness of breath on exertion, pain in his left shoulder of several days' duration, 'internal nervousness, especially when under pressure,' pain in the left arm, pain over the heart following exertion, and pain in both legs with exercise. When examined in 1942, he complained of pain in the left shoulder and Dr. Streeper, a heart specialist, did not feel that the pains were due to a heart condition. Electrocardiograms taken in 1947, 1951, 1952 and 1953, were thought to be moderately abnormal but did not show any specific change during this time and were not felt to represent a heart condition of a severity to recommend any great change in his activities. In 1952 Little reported that he had a lot of tension on his job; that he felt pretty good in the morning until noon, but in the afternoon he felt very tired, listless, and had trouble in thinking and in doing other things. In 1954 Little complained of pain over the heart following exertion, which radiated into the arms. In 1956 Little complained of pain in both legs with exercise. Little noticed this especially with fast walking, the pain which developed being of such severity he would have to stop. After a period of rest the pain would be relieved and he would be able to continue. He had trouble going upstairs. At this time a diagnosis of arterial insufficiency due to arteriosclerosis plus spasm of the arteries in the lower extremities was made. In 1957 an operation was performed which improved circulation in the right leg and foot. Little was operated on for a recurrent hernia on April 9, 1959, and an inguinal herniorrhaphy was performed. During hospitalization, Little complained of pains in the chest and on April 21, 1959, an esophagoscopy was performed without positive findings. This was the last time Little was examined by the Clinic before his death at 10:20 a. m. on June 5, 1959.

An autopsy was performed on Little to determine the cause of death. A summary of the autopsy findings as written by Dr. Thomas Chiffelle, a pathologist, follows:

'This case is predominantly illustrative of the effects of far advanced generalized arteriosclerosis with especial involvement of the coronary arterial system. Nearly all segments of the major coronary system have undergone extreme fibrous intimal thickening with calcification and reduction of the vessel lumen to a small fraction of its normal diameter. In two places (one in the right coronary artery and one in the left coronary artery) there are zones of fresh intramural hemorrhage within large plaques which have resulted in further narrowing of the lumen on these vessels. Physiologically, the cardiac status has been recently in beginning decompensation, as a result of the impaired coronary circulation, such that secondary effects are found (a) in the lungs where hemosiderin laden histiocytes have accumulated ('heart failure' cells), and (b) in the liver which morphologically exhibits the picture of chronic congestion with early central atrophy and focal necrosis. In such a precarious state of coronary circulation and nourishment, as exhibited in this case, the further narrowing of the vessel lumen, by intramural hemorrhage, would readily precipitate a terminal crisis of acute cardiac failure. At sometime in the past, the patient has suffered a severe myocardial infarct (from occlusion of the right coronary artery) resulting in extensive scarring of the posterior wall of the left ventricle of the heart.'

Dr. Chiffelle also testified as follows:

'Q. And will you state to the Court whether or not, when you performed that autopsy, you found this man had had for sometime a very serious heart condition?

'A. He did.

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'Q. Well, is stress recognized medically, doctor, as a precipitating factor in causing death in an already afflicted sclerotic patient?

'A. I think it depends on the conditions that exist prior to the point where the stress is applied.

'Q. Well, my question is, is stress recognized, doctor?

'A. Yes.

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'MR. McLEOD: I will reframe the question, Doctor, from your autopsy that you performed what would be your medical opinion as to that man's days upon this earth, short, long or what?

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'A. Short.'

In approaching the problem before us we must adhere to the ruling of this court as announced in Luna v. Flores, 64 N.M. 312, 328 P.2d 82:

'* * * Where a case is tried by the court without a jury, the court is the sole judge of credibility of witnesses and weight to be given their testimony. * * *

'It has long been the rule that in determining whether evidence is sufficient to sustain the trial court's findings of fact, this court on appeal will consider only that evidence and inferences to be drawn therefrom which support the findings, and we will not consider any evidence unfavorable to the findings. The findings of the trial court will not be disturbed when they are supported by any substantial evidence and this court will not weigh the evidence where conflicts exist. * * *'

We are also bound by the rule that findings of the trial court based on conflicting evidence are conclusive...