Pearson v. Dixie Electric Power Ass'n, 39052

• Citation: 219 Miss. 884,70 So.2d 6
• Decision Date: 01 February 1954
• Docket Number: No. 39052,39052
• Parties: PEARSON et al. v. DIXIE ELECTRIC POWER ASS'N et al.
• Court: United States State Supreme Court of Mississippi

Page 6

70 So.2d 6

219 Miss. 884

PEARSON et al. v. DIXIE ELECTRIC POWER ASS'N et al.

No. 39052.

Supreme Court of Mississippi.

Feb. 1, 1954.

Paul G. Swartzfager and Raymond Swartzfager, Laurel, for appellants.

Beard, Pack & Ratcliff, Laurel, for appellees.

McGEHEE, Chief Justice.

This suit involves a claim under the Workmen's Compensation Act of 1948 and amendments thereto. The claim is for death benefits and is on behalf of the widow and four dependent minor children of William 'Bill' Pearson, deceased, who came to his death while employed by the appellee Dixie Electric Power Association in Wayne County on an occasion when he was assisting a crew of other employees in cutting and clearing off a thick growth of shrubs and bushes from the right-of-way of the electric power line on August 23, 1951. The attorney-referee, after a full hearing of the testimony of several lay witnesses and two physicians, reached the conclusion on the circumstantial evidence that the death of said employee arose out of and in the course of his employment and allowed the claim as being compensable under the provisions of said Act.

On appeal by the employer and its insurance carrier, the American Motorists Insurance Company, to the full Workmen's Compensation Commission, two of the members thereof voted to reverse the decision of the attorney-referee and disallow the claim. The other Commissioner entertained the contrary view and voted to allow the claim. On appeal to the circuit court the decision of the majority of the Commission was affirmed and the claimants have prosecuted this appeal.

On the question of whether the death of the employee arose out of and in the course of his employment there was developed an issue of fact before the attorney-referee as to whether or not the employee had been suffering from a heart ailment prior to the date of his death and died while on the job solely because thereof without regard to the work in which he was engaged, or whether the exertion of his work had aggravated, accelerated or in any manner contributed to his death.

The widow of the deceased testified that 'he felt that he had gotten too hot the day before' while at work. She evidently had reference to what happened to him two days prior to his death, since on account thereof he did not work the day before. She denied that her husband had ever suffered from heart trouble to her knowledge during the 21 years of their married life, but she admitted that he was rejected for military service in World War II and testified that she did not know the cause of his rejection; that he was 44 years of age and had worked practically every day for the appellee Dixie Electric Power Association for a period of about one year immediately prior to his death and had been engaged in the same kind of work that he was doing on the occasion of his death.

It appears from the undisputed evidence that when the employees gathered for the 30 minute lunch period on August 21, 1951, the said employee complained to his foreman that he had 'a burning hurt' in his chest; that the foreman advised him to go and get in the nearby truck and rest a while after lunch instead of going back to work; that he complied with the suggestion of the foreman but decided later in the afternoon to try to resume his work; that then after working about 15 minutes he felt the burning or hurting in his chest again and went back to the truck where he remained a short while and then decided to go home; that he consulted a physician, Dr. Lovette Golden, of Laurel, who examined him but failed to detect any heart ailment; and that this physician advised him, according to the statement made by the employee to his wife and to his foreman, that if he would take a dose of milk of magnesia he would be able to resume work the next morning.

At any rate, the employee rested at home on August 22nd, and during his absence from work he suffered no further pain or discomfort, so far as the evidence discloses. He returned to join the right-of-way crew on the morning of August 23rd, worked until noon, was off for a 30 minute lunch period, worked a very short while after lunch to help complete the task at that particular place on the right-of-way, and then rode in a truck about 5 miles to the location where he died. He had been working there a short while, cutting bushes not larger than 2 or 3 inches in diameter and other growth with a grass blade or scythe, when at about 2:30 P.M. he was seen to walk away from where he was doing the cutting, but no one observed him long enough to see where he stopped on the right-of-way. His working implement was found a few steps from where he had quit work, and his body was found about the same distance down the right-of-way from the implement, about 15 minutes after he was last seen at work.

Immediately prior to returning to work after lunch on August 23rd, the employee was evidently feeling no discomfort, since he was then laughing and talking in connection with a practical joke which he had just played on a fellow employee. When his body was found several steps from where he had been at work on the right-of-way, he was lying on the ground in the shade with his head resting on his left arm. No autopsy was made and no physician examined the body, but the coroner impaneled an inquest jury, which assembled at the scene, and it was found that the body was badly discolored and there were no marks of violence on the body or any signs of a struggle at the place where it was found. It could reasonably have been inferred that something occurred to render it necessary for him to cease work and go lie down in the shade where he died within a few minutes after quitting work. The verdict of the coroner's jury was to the effect that the employee's death was 'from natural causes, apparently heart attack', and the coroner testified that the words 'apparently heart attack' were noted thereon to indicate what the natural cause was thought to be, as a nonexpert opinion.

In addition to the testimony of the employee's widow and that of the coroner, the claimants introduced at the first hearing which occurred before the attorney-referee on January 25, 1952, the testimony of a fellow employee to the effect that about 15 minutes prior to when the employee Pearson was last seen at work he was laughing and talking; that the weather was 'plenty hot'; and that said employee had told the witness on a prior occasion that he had been examined by army doctors who found that his heart was in bad shape, and he had made that statement frequently to other members of the crew. The claimants then rested their case, except for medical testimony which was given at a later date before the attorney-referee, and the substance of which will be hereinafter stated.

Thereupon the employer and its insurance carrier called as their first witness Arnold Pearson, a brother of the deceased employee and who was a former member of the board of supervisors. He testified in substance that the deceased had had a bad heart condition all of his life, and had told him that the army doctors had rejected him for military service on that account; that he personally knew from reputation in the family that the deceased employee had previously suffered from 'a leaking heart' and and that it was a permanent heart condition; and that their father wouldn't let him work because he 'was not able to do a lot.'

The foremen of the right-of-way crew was then introduced by the defense and he testified in conformity to what has been heretofore stated in regard to what occurred at the lunch period and in the afternoon of August 21st, and that the employee had been working only about 15 or 20 minutes on the afternoon of August 23rd immediately before he died. This witness testified that the weather was typical weather for the time of the year in that locality, and he also corroborated the coroner as to the location and condition of the body, and confirmed the fact that the employee had previously mentioned his heart ailment.

The defense also introduced G. L. Rogers, a member of the right-of-way crew who corroborated the other testimony in regard to the employee's statements about the pre-existing heart ailment and who told of the incident when the deceased immediately before returning to work from lunch on August 23, 1951, had 'wadded up an old fan belt and threw it' under the feet of the witness, startled him by exclaiming 'Snake!', and then laughed about the occurrence. He also corroborated the testimony of the coroner as to the condition of the deceased and the position in which his body was lying when found on the right-of-way.

Curt Robinson, another member of the right-of-way crew, confirmed on behalf of the defense the alleged fact of the previous statements of the employee in regard to the army doctors having rejected him on account of a bad heart condition and also as to what occurred at the lunch period and during the afternoon of August 21st. This nonexpert witness did not think that the employee came to his death from being overheated or overworked, and he emphasized that he was talking and laughing immediately before going back to work shortly before his death.

Thereupon the defense tendered three other members of the right-of-way crew for cross-examination by the attorney-referee or by the attorneys for the claimants, upon the assumption that their testimony would be cumulative and corroborative of the testimony of the other members of the crew.

The cross-examination of those...