E.P. Bettendorf & Co. v. Kelly, 5-1657
| Decision Date | 17 November 1958 |
| Docket Number | No. 5-1657,5-1657 |
| Parties | E. P. BETTENDORF & COMPANY et al., Appellants, v. Mrs. Bethel B. KELLY, Appellee. |
| Court | Arkansas Supreme Court |
Leffel Gentry, Little Rock, for appellants.
Shaver, Tackett & Jones, Texarkana, for appellee.
This is a Workmen's Compensation case. Melvin Kelly suffered a heart attack and died while working for the appellant, E. P. Bettendorf & Company on April 25, 1956. The Workmen's Compensation Commission made an award to the appellees, who are the widow and children of Melvin Kelly; the Circuit Court affirmed the Commission's award; and appellant prosecutes this appeal, urging only one point for reversal, to wit: 'The decedent, Melvin Kelly, did not sustain an accidental injury arising out of his employment'. This assignment requires a brief review of the evidence and a discussion of the applicable rule of law.
Mr. Kelly, aged 43, was engaged in driving nails into pallets (boards) when he collapsed. Dr. Shelton (the local physician of the appellant) testified that Mr. Kelly had been suffering for sometime with chronic nephritis (kidney ailment), and also with hypertension (high blood pressure); and that physicial exertion by a person suffering from hypertension increases the heart's burden and hastens a heart attack. The death certificate signed by Dr. Shelton stated that Mr. Kelly died from a coronary infarction. When Mr. Kelly collapsed at his work, Dr. Shelton was called immediately, had the patient taken to the hospital, had oxygen administered; but all to no avail. It was Dr Shelton's opinion that Mr. Kelly died en route to the hospital.
On this testimony, and other of a similar nature, the Commission made an award of compensation for Mr. Kelly's death. The Referee used this language in his opinion, which was affirmed by the full Commission:
'A study of the evidence in this case taken together with the medical testimony shows, in the opinion of the Referee, that the claimant had a pre-existing condition which taken together with the work load that the claimant was undertaking on the date of his collapse and death resulted in his collapse on the job in the course of his employment. The Referee is further of the opinion that the evidence shows that the claimant's work was a causal connection in the claimant's death. The evidence shows that the claimant was a hard worker and that he had worked on numerous occasions doing over-time work and this taken together with the amount of work that the claimant had done in the past and his collapse on the job while attempting to do the work before him on that date, made his collapse and death accidental injury arising out of and in the course of his employment.
In bringing the case to this Court, appellant's counsel contends that anyone could have known that a person suffering from high blood pressure would have a heart attack if such person engaged in over-exertion; and so (reasons appellant's attorney) Mr. Kelly's death was not accidental but consequential due to his disease and his over-exertion. 1
In an effort to avoid the effect of our holding in Bryant State & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436, appellant uses this language:
'The testimony of the very witness called by the claimants in this case to establish that Kelly died as the result of a heart attack, a contributing cause of which was the work which he was performing, also indisputably establishes that the heart attack was not unforeseen or unexpected, but, on the contrary, in light of the fact that he was suffering from hypertension and nephritis, that the occurrence of a heart attack was not only expectable and foreseeable, but was entirely probable.'
We cannot follow appellant in the conclusion urged. Every time a mortal is born everyone knows that some time the mortal will die, so the death of a mortal is never unforeseen or unexpected in the light of human existence. But just when the death will occur and under what circumstances, is certainly unforeseeable and unpredictable. So it was with the heart...
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...not heavy or strenuous but more strenuous than sitting. Appellants recognize the governing rules stated in Bettendorf & Company v. Kelly, 229 Ark. 672, 317 S.W.2d 708, and many other cases, that an accidental injury arises out of employment when the required exertion which produces the inju......
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...cases. It has been consistently followed by this Court and emphasized in many cases, particularly in the case of [E. P.] Bettendorf & Co. v. Kelly, Ark., 317 S.W.2d 708. The learned Circuit Judge in the case at bar was thoroughly familiar with the Bryant Stave & Heading Co. case as is shown......
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...excess strain. He died and his family was denied compensation because it said that he would have died anyway. In Bettendorf & Co. v. Kelly, 229 Ark. 672, 317 S.W.2d 708, the argument was made that the worker would have died anyway and we said of that 'We cannot follow appellant in the concl......
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