Sollitt Const. Co. v. Walker, 18799

• Decision Date: 26 June 1956
• Docket Number: No. 18799,18799
• Citation: Sollitt Const. Co. v. Walker, 135 N.E.2d 623, 127 Ind.App. 213 (Ind. App. 1956)
• Parties: SOLLITT CONSTRUCTION COMPANY, Inc., Appellant, v. Alice WALKER and Gilbert Walker, Greer Walker, Lavelle Walker & Sharon Walker, minor dependents, by Alice Walker, their mother and natural guardian, Appellees.
• Court: Indiana Appellate Court

Page 623

135 N.E.2d 623

127 Ind.App. 213

SOLLITT CONSTRUCTION COMPANY, Inc., Appellant, v. Alice WALKER and Gilbert Walker, Greer Walker, Lavelle Walker & Sharon Walker, minor dependents, by Alice Walker, their mother and natural guardian, Appellees.

No. 18799.

Appellate Court of Indiana, in Banc.

June 26, 1956.

Jones, Obenchain & Butler, Roland Obenchain, South Bend, for appellant.

Allen & Allen, J. Chester Allen, South Bend, for appellees.

BOWEN, Judge.

This is a proceeding by the appellant for a judicial review of an award of the Full Industrial Board in favor of the appellees, the surviving widow and minor dependents of Spearman DeWitt Walker rendered upon the application of such appellees for workmen's compensation by reason of decedent's death which allegedly occurred as the result of an accident arising out of and in the course of his employment by the appellant. To appellees' application for compensation the appellant filed an answer in admission and denial, which, as far as this appeal is concerned, presented a controversy whether decedent died as a proximate result of personal injuries received by him on the day in question by reason of an accident arising out of and in the course of his employment.

The single member of the Industrial Board at the original hearing found against the appellees; the appellees thereafter filed their application for review by the Full Industrial Board which entered a finding and award against the appellant, in which such finding and award, the single member who had previously found against the appellees did not concur.

Sole error assigned is that the award of the Full Industrial Board is contrary to law.

Considering the evidence most favorable to appellees which we are required to do, from the record, it appears, that the decedent was fifty-eight years of age, six feet two inches tall and weighed 210 pounds. That he had worked as a construction laborer for approximately eleven years. Decedent had been suffering from heart disease for several years prior to his death. During this time he had been under the care of a physician and received treatments for this heart disease from one to three times a week up until the latter part of January preceding his death. His physician last saw him some two days before his death at which he had a chronic cough and an enlarged heart. Another physician who had treated him in his lifetime for a number of years for a hypertensive cardiovascular condition testified that he had a history of blood pressure of systolic reading of 250, and with a diastolic of 100 to 150. The autopsy following his death showed that the weight of his heart was double that of a normal heart, and there was scarring of the heart musculature and thickening of the aorta and coronary arteries, and congestion of the lungs. It must be assumed from the evidence that the decedent had a badly diseased chronic heart condition at the time of his death.

While there were some minor conflicts, the evidence most favorable to appellee shows that on the morning in question the decedent was working as a construction laborer in the construction of the Bendix Aviation Plant in South Bend. He was helping in the wrecking of wooden forms which had to be removed after concrete has been poured and sets. Such wooden forms had contained a concrete wall which was from 15 to 20 feet high. There was a mound of dirt about 6 feet long, 8 feet wide, and 4 feet high some 2 feet from this wall. The decedent was standing at the foot of this mound of dirt when a fellow laborer loosened one of the boards from the wall, the top part became loose and this board which was a 2 by 6 from 15 to 18 feet long, weighing 25 to 30 pounds, fell, the bottom part striking the mound of dirt, and then this board sprang back against the wall, and then back again coming down the 4-foot incline and struck the decedent on the left side of the head. When the plank broke loose a fellow workman yelled to the decedent to look out. The decedent at the moment was stooping over picking up some small clamps, and in straightening up in response to the look out warning rose up into the path of the falling board. When the board struck decedent he pulled his cap off of his head and started rubbing his head. Some ten to fifteen minutes later he started staggering and stumbling around and talking incoherently, and when a fellow employee asked him what was wrong after he had said 'who-eee', he said 'Oh, I'll make it.' The decedent remained on the job after he was struck by the board for some thirty minutes, and until the foreman came around and asked other workmen what was the matter, and one of them told the foreman that the decedent got hit by a 2 by 6, and the foreman told the other men to get him out and take him to a doctor. The decedent was then helped out of the low place in which he had been working and placed in an automobile. Enroute to the doctor's office, in the automobile, the decedent urinated and bled at the mouth, and was unresponsive to questions. The decedent was transferred to an ambulance on arriving outside of the doctor's office, and he died enroute to the hospital.

The medical testimony supporting the appellees' claims comes mainly from the testimony of Dr. Butts, who testified that he had treated the decedent for heart trouble during his lifetime, and that he had an enlarged heart. That he was present when the autopsy was performed on decedent's body after his death. His testimony referring to the striking on the head by the falling board in answer to a hypothetical question setting forth the facts and circumstances of the record in substance was as follows:

'Q. Would you have an opinion as to whether there was any causal connection between the blow on the head and the death of that man, Spearman Walker? A. I do.

'Q. Well, what was that opinion, Doctor? A. Well, my opinion would be tied in largely with the autopsy. From the autopsy we established two facts. The man had an enlarged heart, he had pulmonary edema, which tells us he had a heart that was failing too. That gives us the pulmonary edema and enlargement of the heart. Then too in the autopsy report you noted he had fibrosis or scar tissue throughout the heart wall itself. That is due to coronary insufficiency. Under those conditions anything such as fright, physical--or exertion or excitement can precipitate failure in such a heart from the very fact that the relationship of time between the incident and the death I would certainly think in my way of thinking that there was a connection between this blow and the man's death.'

'A. Well, when a heart such as Mr. Walker had was already enlarged the oxygen demand for that heart was great because of the tremendous enlargement. Now, under conditions such as fright, excitement or anything of an emotional nature the demand--the oxygen demand for the heart is automatically stepped up and if you have a coronary system which is already deficient, the coronary system can't take care of the extra demand on the heart system. A man can have one attack which may be fatal or he can have several such attacks.

'Q. So that it's your opinion that this--either the blow or the excitement aggravated this condition, that right? A. That's right.

'Q. And, thereby hastened and caused the death? A. Affirmative nod.

'Q. And, Dr. Butts, was that the situation against which you were cautioning him over the months that you treated him? A. That's right, because a laboring man cannot stand that extra load on the heart because the heart was failing, it just can't take it.

'Q. And, from what you say it's borne out by the autopsy report itself? A. By the autopsy report.'

On cross-examination Dr. Butts testified as follows:

'Q. Now, would it make any difference in your opinion whether the contact of the plank with Mr. Walker's head was a mere glancing blow which caused no contusion, no abrasion, no swelling, no discoloration, and one that did? A. Well, in answering your question, I'll put it this way. So far as the blow itself is concerned I think it had no connection but it was the excitement was the thing precipitated----

'Q. * * * Then you in your opinion, whatever, however little or however severe the contact of the plank with the head may have been, that itself had no bearing on the final termination. A. No.

'Q. Now, are you assuming that there was any excitement? A. There had to be excitement.

'Q. How do you mean, 'there had to be'? A. I mean, of course, I wasn't there, the only thing I can do----

'Q. (Interposing) You're taking what Mr. Allen asked you to assume? A. No. I'm taking from the history of the witness.'

The finding of the Full Board as to the material question at issue in...