Mayor and Aldermen of Town of Tullahoma v. Ward

• Decision Date: 02 April 1938
• Citation: 114 S.W.2d 804,173 Tenn. 91
• Parties: MAYOR AND ALDERMEN OF TOWN OF TULLAHOMA et al. v. WARD.
• Court: Tennessee Supreme Court

114 S.W.2d 804

173 Tenn. 91

MAYOR AND ALDERMEN OF TOWN OF TULLAHOMA et al. v. WARD.

Supreme Court of Tennessee.

April 2, 1938

Appeal from Circuit Court, Coffee County; R. W. Smartt, Judge.

Proceedings under the Workmen's Compensation Act by Mrs. Olga Ward claimant, opposed by the Mayor and Aldermen of the Town of Tullahoma and others. From a judgment granting an award of compensation, defendants appeal.

Affirmed.

Leighton Ewell, of Manchester, and W. H. G. Caldwell, of Nashville for appellants.

J. D Murphree and L. S. Haugland, both of Shelbyville, for appellee.

CHAMBLISS Justice.

The question presented on this appeal from an award of compensation is whether or not there is material evidence sustaining the finding of the trial judge (1) that the death of the employee, husband of petitioner was proximately caused, or appreciably accelerated, by the injury he received, and (2) that the injury arose out of and in the course of his employment.

1. W. W. Ward was in the employ of the town of Tullahoma as one of two police officers, he being chief. While walking along a street of the town, just after midnight of July 18, 1936, a car driven by a person who proved to be intoxicated came up behind and swerved from the right to the left side of the road, on which Ward was walking, and struck him, throwing him violently to the ground, bruising his left leg, and his body otherwise. He was in uniform and his pistol was in a scabbard on his left side. A companion, witness Allen, who had formerly served as a police officer, says Ward fell with great force on his left side. He was a large man, weighing about 200 pounds. This witness says that as he rose Ward "placed his hand on his left side and grunted." When asked if he was hurt, he said, "I believe I am hurt pretty bad." He was carried in a passing car to the office of Dr. Mitchell. As he walked in, he was holding his left side and again remarked, "I believe I am pretty badly hurt." Bruises on his ankle and knee and a cut on his hand were treated. No examination of the abdomen was made at that time. Dr. Mitchell is a member of the Board of Mayor and Aldermen. He does not recall the circumstance above mentioned, which is established by others. He was introduced by the defendant and says that he visited Ward once later, in the absence of Ward's physician, Dr. Dossett, and that at that time Ward was suffering, complaining of his left side, and that his bowels would not move. Mrs. Ward says that she received him at home that night and helped him undress; that he complained most of his side; and that there was a blue or discolored spot on his left side where his gun hung in the scabbard. Ward attempted to get about, using a stick, for several days, but other witnesses say he complained of much pain in this side. Meanwhile, Dr. Dossett was treating him and he finally carried him to the Protestant Hospital in Nashville. There Dr. Thomas Pollard examined and operated on him. He died a few days later, on August 28th, forty days after he was injured. A report from Dr. Pollard was introduced by agreement, reading as follows:

"To whom it may concern:

"This is to certify that Mr. W. W. Ward of Tullahoma, Tenn., deceased, was brought to me by Dr. Dossett of Tullahoma, Tennessee for an examination.

"Mr. Ward gave a history of having met with an automobile accident some days prior to entering the hospital. From the time of the accident, he had pains in his abdomen which continued to grow worse up to the time he entered the hospital.

"Upon examination, I found that he was very tender upon pressure on the whole of his abdomen, more particularly on the left side. He stated that he had been nauseated, and had vomited frequently, and that his bowels had moved with difficulty for the past day or two. Dr. Dossett and I made a tentative diagnosis of intestinal obstruction, probably due to adhesions due to the accident.

"An operation was decided upon. We found that he had a congestion of the left side of the bowel near the sigmoid and rectal junction. At this point was a mass about the size of a small orange, odemetous in nature, that is swollen. The tumor, in my opinion, had been there for some time, but the acute swelling precipitated his obstruction.

"No effort was made to remove the tumor, the abdomen was closed, and Mr. Ward died a few days later."

It appears from this report Dr. Pollard's tentative examination indicated that an injury had been received on the left side and "intestinal obstruction probably due to adhesions due to the accident." The operation confirmed this, showing the obstruction to be a tumor which was in a swollen condition, and while the tumor had been there some time, the acute swelling precipitated the obstruction. This swollen "intestinal obstruction," which the doctor thought was "due to the accident," fairly appears to have been the immediate cause of death.

Mr. Ward's own explanation of the injury to his side was that "his trouble was caused from the butt of his gun hitting his side." The evidence otherwise seems to support this theory. All the proof shows that Ward was a man of fine physique and in perfect health up to the time of this injury, and that he was never well thereafter.

His personal physician, Dr. Dossett, had had thirty years' experience. When he first visited Ward, a day or two after the accident, he was complaining of pain in the abdomen and left side, was vomiting a good deal, could take no nourishment, and had great difficulty with his eliminations. He said he had seen Ward carrying a gun on this left side in the neighborhood of the position behind which he and Dr. Pollard found the obstruction, which he called a tumor, and which he thought might have been a blood tumor; he did not think it cancerous, and he said an injury to the intestines could have caused such a tumor. "A lick of any kind may cause serious trouble in the abdomen." He said, also, "If he falls on any part of the abdomen it might cause a blood clot." In response to the question whether or not this condition the surgeon found might have been caused by the violence with which Ward was thrown down, Dr. Dossett said, "as I have heretofore stated, yes. It does not sometimes take a great deal, or a great lick in the abdomen to cause a condition that might be very serious." He expressed his opinion in these words: "This accident I think was very likely the cause of it, [that is, the condition he found] but I could not say that did it--that is my conclusion." He observed some discoloration on the side of the abdomen soon after the accident. He testified, also, that he and Dr. Pollard thought this injury more than likely aggravated any prior condition; and that this injury had been traumatic. He said: "That was our opinion, after discussing the matter. That is, that it must have been some traumatic condition that caused this mass to form, either adhesion or blood clot."

We quote from the findings of the trial judge as follows:

"As to...