Shannon v. City of Hazlehurst

• Decision Date: 14 December 1959
• Docket Number: No. 41310,41310
• Citation: 116 So.2d 546,237 Miss. 828
• Parties: Roberta SHANNON, Dependent Widow of Henry Shannon Deceased, v. CITY OF HAZLEHURST, Miss., et al.
• Court: Mississippi Supreme Court

Page 546

116 So.2d 546

237 Miss. 828

Roberta SHANNON, Dependent Widow of Henry Shannon Deceased, v. CITY OF HAZLEHURST, Miss., et al.

No. 41310.

Supreme Court of Mississippi.

Dec. 14, 1959.

Arrington & Arrington, Hazlehurst, for appellant.

Armstrong & Hoffman, Hazlehurst, for appellee.

HALL, Justice.

This is another workmen's compensation case. The record shows that Henry Shannon was employed by the City of Hazlehurst as a garbage collector, his duties requiring him to work 7 days a week along with one Rudel Hilliard as a working partner. On January 18, 1957, beginning about 4:00 o'clock in the morning, they started sweeping trash on one of the main streets of Hazlehurst. This they loaded into a truck, furnished them by the City, by means of a large shovel. The sides of the truck were 6 feet 6 inches above the ground. After they had used the shovels or scoops in picking up this trash and throwing it into the truck they moved off the street and into an alley behind the business section and picked up 5 cans of garbage and then went into a garbage bin and commenced loading garbage from the bin into the truck. Henry threw his scoop into the truck and went back into the bin. Rudel missed him and then went into the bin to see about him and found him lying down flat on his back in the bin in an unconscious condition. Henry was never able to get out of the bin and Rudel called a policeman on duty and they carried him to the hospital. Dr. Thomas F. McDonnell was subject to call at that time and he was immediately called to the hospital and upon his arrival he found Henry already dead.

Dr. James G. Blaine, a partner of Dr. McDonnell, examined Henry on January 1, 1957, and found him suffering with virus bronchitis. He also examined Henry on January 4, 1957, and in signing the death certificate in this case Dr. Blaine stated that Henry died of myocarditis due to acute virus pneumonitis. And in his testimony Dr. Blaine stated that Henry's work contributed to his death and that in signing the death certificate he correlated the type of death with the findings he had seen in his treatment during Henry's lifetime.

Dr. Clifford Tillman, a specialist in cardiology, testified in answer to a hypothetical question, that Henry's work probably precipitated his death; and that in view of Henry's age, the suddenness of death, and his activity at the time of death it was his opinion that statistically the chances of this being a death due to a heart attack would be at least 80%, or higher.

The defendant in the case undertook to rebut the presumption arising from death while in the discharge of his duty, and introduced Dr. J. P. Melvin, Jr., a cardiovascular specialist, who said that in his opinion Henry died of coronary occlusion, that about 85% of such cases can be classified as coronary occlusion, and that his opinion is statistically overwhelming, usually about 85%, but he expressed the opinion that he did not think that Henry's work caused or aggravated or precipitated his death. However, on cross examination he stated that if the deceased had chest pains on January 1 and continued working and no diagnosis of heart disease was made he would have to go along with the medical testimony of the doctor who examined Henry, and that he does not prescribe exertion for a patient suffering with a serious involvement of the heart; and that the exertion and manual labor he was performing would have an adverse effect on his heart condition and that it would have contributed to the resulting death.

In a further effort to rebut the presumption arising in a case where an employee is found dead while on the job in the discharge of his duties, the defendant offered Dr. J. Manning Hudson, a specialist in internal medicine, who testified that nobody could say with certainty as to the cause of death and that he was unable to express an opinion with any degree of certainty, but on cross examination he said that the work in his opinion contributed slightly to death and that he does not prescribe exertion for a patient with heart trouble.

In a further effort to rebut the presumption the defendant introduced the deposition of Dr. J. Ralph Goldman, a cardiologist of Memphis, Tennessee, who stated definitely that never having seen the deceased and personally knowing nothing about his condition it was utterly impossible for him to give a definite cause of death in the absence of an autopsy, which, in this case, was not performed.

In a further effort to rebut the presumption the defendant offered the deposition of Dr. George E. Burch, a cardiovascular specialist of New Orleans, who testified that in his opinion the cause of death was most likely vascular in origin, but that it was impossible to make an absolutely correct diagnosis of the cause of death in the absence of an autopsy.

On the basis of the foregoing testimony the attorney-referee rendered an opinion denying the claim and in the course of his opinion he pointed out that the work being performed by the deceased was not of the strenuous nature involving exertion. Two members of the Workmen's Compensation Commission entered a short order affirming the attorney-referee. On appeal to the...