Mississippi Shipping Company v. Henderson

• Decision Date: 12 April 1956
• Docket Number: No. 15821.,15821.
• Citation: 231 F.2d 457
• Parties: MISSISSIPPI SHIPPING COMPANY, Inc., and American Employers' Insurance Company, Appellants, v. Joseph H. HENDERSON, United States Deputy Commissioner, and Mrs. Mary Rabito Latino, Widow of Ben Latino, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

231 F.2d 457 (1956)

MISSISSIPPI SHIPPING COMPANY, Inc., and American Employers' Insurance Company, Appellants, v. Joseph H. HENDERSON, United States Deputy Commissioner, and Mrs. Mary Rabito Latino, Widow of Ben Latino, Appellees.

No. 15821.

United States Court of Appeals Fifth Circuit.

April 12, 1956.

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Joseph M. Rault, Jr., Andrew R. Martinez, New Orleans, La., Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellant.

Prim B. Smith, Jr., Asst. U. S. Atty., New Orleans, La., George R. Blue, U. S. Atty., New Orleans, La., for appellee Joseph H. Henderson, Stuart Rothman, Sol. of Labor, W. E. Boote, Asst. Sol., Herbert P. Miller, Atty., U. S. Dept. of Labor, Washington, D. C., of counsel.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

Brought against the commissioner and the widow of one Ben Latino who, having suffered a compensable heart attack on March 27, 1953, for which an award at first to temporary total and later temporary partial disability was made, had died of a heart attack and collapse on December 2, 1953, the suit sought to enjoin and set aside a compensation order finding the death due to the injuries suffered on March 27, and awarding the widow death benefits therefor.

The claim was that the death was not compensable: in that it occurred on the sidewalk while deceased was walking from his place of employment and not upon navigable waters; and in that the commissioner had erred in finding and holding that the heart attack which caused the collapse and death on December 2nd, was a natural and unavoidable result of the injury to his heart which the decedent had sustained on March 27th.

The defense was that the finding of the commissioner, that the deceased's death on December 2, 1953, resulted from the injury on March 27, 1953, finds full support in the record, and the award may not be enjoined or set aside.

On the issues thus joined, the cause was heard to the court on the record made before the commissioner.¹

Appealing from the order, plaintiffs, insisting: (a) that there was no accident and no accidental injury; (b) that the fatal collapse of Dec. 2nd, was not factually or legally related to the initial heart attack of March 27th; and (c) that the December 2nd collapse occurred not in the course of Latino's employment but while he was on personal business walking on the sidewalk after his employment or work for the day had ended; urge upon us that the order was erroneous and must be reversed.

Appellees, on their part, marshalling the general principles and authorities² controlling here, insist that the evidence on which the commissioner relied amply supported his findings and required the entry of the judgment appealed from.

We agree with the appellees that this is so, and, upon the principles stated and the authorities cited by appellees, to which may be added Glens Falls Indemnity Co. v. Henderson, 5 Cir., 212 F. 2d 617, Southern Stevedoring v. Voris, 5 Cir., 218 F.2d 250, and Riley v. Henderson, 5 Cir., 218 F.2d 752, the judgment is affirmed.

1 It was stipulated as follows: That the findings of fact which are contained in paragraphs numbered 1 to 7 of the conpensation order of January 19, 1954, relating to the disability claim, as distinguished from the death claim, may be incorporated in the record of the hearing upon the death claim. The facts thus stipulated substantially are: That Latino, the employee, while proceeding from the vessel on which he was employed to the wharf to bring a load of paint weighing about 44 pounds, climbed an almost perpendicular stairway of 12 to 15 steps to the deck, then through a passageway to the gangway and down the gangway to the wharf where he picked up the paint, placed it upon his shoulder and proceeded back up the gangway, which rose 20 feet in a distance of 50 feet, then returned along the passageway to the steps leading to the place from which he started. On reaching the bottom of these steps he felt a pain in his chest and collapsed. Immediate and extended hospital and medical treatment followed and continued for some time.

The Deputy Commissioner further found as facts in order relating to the disability claim and which facts as stated were stipulated in the hearing upon the death claim: That the exertion of going for and carrying the paint caused the collapse, which was due to a heart attack; that the employee was disabled wholly or partially as a result of said condition until his death on Dec. 2, 1953.

Two physicians testified in support of the causal relationship between the employment and the heart attack, Dr. Levy and Dr. Smith of the United States Public Health Service. A letter from Dr. Horack dated June 22, 1953, states that the exertion was sufficient to aggravate a pre-existing heart condition.

In view of the above admitted facts which support the commissioner's finding as to the March 27th...