Patterson Transfer Co. v. Lewis

• Decision Date: 17 July 1953
• Citation: 260 S.W.2d 182,195 Tenn. 474,31 Beeler 474
• Parties: PATTERSON TRANSFER CO. et al. v. LEWIS. 31 Beeler 474, 195 Tenn. 474, 260 S.W.2d 182
• Court: Tennessee Supreme Court

Page 182

260 S.W.2d 182

PATTERSON TRANSFER CO. et al. v.LEWIS.

31 Beeler 474, 195 Tenn. 474, 260 S.W.2d 182

Supreme Court of Tennessee.

July 17, 1953.

Winchester & Bearman, Memphis, for appellants.

T. B. Passmore, Memphis, for appellee.

GAILOR, Justice.

This is a case arising under the Workmen's Compensation Act in which the trial court has made an award, and the defendants have appealed.The only question presented is whether death of the employee arose out of the employment under a proper construction of Codesec. 6852(d).Bernice Lewis, widow of the deceased employee, Willie Lewis, filed the petition against the employer, Patterson Transfer Company and its insurance carrier, Bituminous Casualty Corporation.

Lewis was a truck driver, and while unloading a truck load of plumbing fixtures on the platform of the N. C. & St. L. Freight Depot in Memphis, on February 6, 1952, he had a heart attack and died before reaching a hospital.

Three doctors testified as experts at the trial.A pathologist, who had made an autopsy, testified that the immediate cause of death was a coronary occlusion, caused by thrombosis or clot and that the deceased employee was suffering from chronic arteriosclerosis.The pathologist was unwilling to say whether or not the actions of Lewis at the time of death, or his physical exertion then, aggravated or accelerated the fatal effect of his chronic arteriosclerosis.He did not deny that action and exertion immediately prior to death might have been a contributing cause.On the other hand, the two general practitioners, whose testimony was accepted as expert by the learned Probate Judge, cf.Inscore v. Pet Milk Co., 192 Tenn. 593, 595, 241 S.W.2d 581, gave it as their expert opinion that the activity and physical exertion of Lewis immediately prior to his death, was a contributing and accelerating factor.Specifically, Dr. Watkins testified:

'I feel that the strain on his heart caused by the exertion is what caused this man's death.'

Dr. McCleave testified substantially to the same effect.

The elaborate argument that this testimony was speculation, is not persuasive, since expert medical opinion on the mysterious functioning of the human body must always be more or less speculative, and we are not called on to draw a line between expert 'speculation' and expert 'opinion' since the acceptance of the testimony and the credibility of witnesses are foreclosed by the decision of the trial judge.Inscore v. Pet Milk Co., supra.Expert medical opinion of the effect of exertion and worry on coronary thrombosis was held the 'best evidence' in Howell v. Charles H. Bacon Co., D.C., 98 F.Supp. 567, and disability from aggravated coronary thrombosis (from lifting and carrying iron pipe) was held compensable in Sage v. Tennessee Eastman Corp., D.C., 98 F.Supp. 893.

In this case, after a careful and detailed finding of facts, the learned Probate Judge said:

'The Court finds, as the most reasonable inference from all the circumstances and the testimony of the doctors, and the liberal construction given the Act, that Willie Lewis was suffering from a diseased heart condition, coronary arteriosclerosis; that the strain on his heart vessels from the physical exertion involved in his work in unloading said shipment and lifting or holding said fixtures aggravated his said diseased heart condition and occasioned and hastened his death; that his death under said circumstances is attributable to an accidental injury arising out of and in the course of his employment.'

It is argued for the defendants that this case is controlled by Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436.In the Anderson case, the trial judge denied compensation and in the present casehe has made the award.In workmen's compensation cases, the appellant does not have a trial de novo in this Court, but the appeal here is in the nature of a writ of error under the scope of review defined in Rule 14, 185 Tenn. 866-871;Mullins v. Tennessee Stave & Lbr. Co., 155 Tenn. 132, 290 S.W. 975.In the Anderson case, the claimant sought compensation for death by heat stroke.The autopsy disclosed that death was not caused by heat stroke but by an independent heart attack.There was no insistence apparently, that the exertion of his employment had caused the heart attack.The trial judge found that the cause of death was not a heat stroke, and denied the compensation.Since his finding was supported by the evidence, we affirmed his judgment.Since the Anderson case, this Court has consistently held that death or disability from heat stroke, without 'external accident' is compensable.Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610;Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585.

In a recent case, Cunningham v. Hembree, 195 Tenn. ----, 257 S.W.2d 12, this Court affirmed an award for death caused by a cerebral vascular hemorrhage, although there had been no injury 'by violent, external accidental means.'The fact that death occurred while the employee was engaged in his usual and normal employment, without external accident, is not controlling since the opinion of this Court in King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 53 A.L.R. 1086.

Here, we have a case where the cause of death is not disputed.It was coronary thrombosis and the evidence shows no prior or concurrent accidental physical injury which preceded the coronary occlusion which caused death.

As Judge Green said in Prudential Ins. Co. v. Gang, 184 Tenn. 188, at page 191, 197 S.W.2d 806, at page 807:

'As a matter of fact, heart ailment is now so common if it be serious, that we may take judicial notice that rest and quiet are demanded if the victim is to survive.'

The two doctors introduced for the petitioner gave it as their expert opinion, that the exertion attendant upon the manual labor being performed by the employee when he was stricken, was a strain on his diseased heart and arteries which caused death.If an ordinary exertion or usual strain produces an unusual result, is the resulting injury by accident?It is now well established that ordinary and usual exertion at work resulting in injuries, is compensable.Awards have been upheld on the basis of accidental injury where the strain in tightening a nut in the ordinary manner, caused an aneurism to break, Griffin's Case, 315 Mass. 71, 51 N.E.2d 768; where unloading bags of cement caused a cerebral hemorrhage, Lumberman's Mut. Cas. Co. v. Griggs, 190 Ga. 277, 9 S.E.2d 84; coronary thrombosis from ordinary lifting, Peterson v. Safeway Stores, 158 Kan. 271, 146...