Town of Newburgh v. Jones

• Decision Date: 30 January 1945
• Docket Number: 17326.
• Citation: 58 N.E.2d 938,115 Ind.App. 320
• Parties: TOWN OF NEWBURGH v. JONES.
• Court: Indiana Appellate Court

58 N.E.2d 938

115 Ind.App. 320

TOWN OF NEWBURGH v. JONES.

No. 17326.

Appellate Court of Indiana, in Banc.

January 30, 1945

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Eva M. Jones claimant for the death of her husband, opposed by the Town of Newburgh, employer. From an award of the Industrial Board granting compensation, the employer appeals.

Award affirmed.

Herman L. McCray and Curtis C. Plopper, both of Evansville, for appellant.

Ireland Denton & Fish, of Evansville, for appellee.

CRUMPACKER Judge.

While engaged in the performance of his duties as Town Marshal and Street Commissioner of the appellant Town of Newburgh, the appellee's husband, Joseph Jones, on June 5, 1943 received an electric shock and died of coronary occlusion the following September 29. The appellee filed application for relief under the provisions of the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., and, upon the hearing of such application before the Industrial Board, all facts essential and necessary to a recovery were agreed to and stipulated except the ultimate fact as to the causal connection between the electric shock and Joseph Jones' death. This issue was tried by the board and resulted in a finding that death was the proximate result of said electric shock and an appropriate award was duly entered. This appeal challenges the sufficiency of the evidence to sustain the finding on such issue.

Before the appellee's claim was heard the appellant filed a written request with the IndustrialBoard for an autopsy upon the body of Joseph Jones alleging therein that such autopsy would disclose the fact as to whether said decedent's death was due to electric shock or to causes unconnected therewith. This request was denied and on such denial the appellant predicates error.

Thus we have but two questions before us: (1) Is there any substantial evidence in the record tending to prove that the electric shock suffered by the decedent was the cause of his death; and (2) when and under what circumstances does an employer have the right to an autopsy?

The following hypothetical question was propounded to the witness, Justice F. Wynn, a duly licensed and practicing physician of Evansville, Indiana:

'If the plaintiff's deceased, Joseph Jones, was 60 years of age and prior to the 5th day of June, 1943, was a stout and healthy man, and on that day he received a shock of electricity from a wire carrying 2300 volts of electricity, which shock threw him some 20 feet and from which he became unconscious; that thereafter he was taken to his home and because of said shock was required to remain in bed for two weeks; that thereafter he continued his work as town marshall and street commissioner of the town of Newburgh but that after said shock he had dizzy spells and was unable to breathe properly and had appetite for food and that he was unable to sleep and rest at night and that on the 29th day of September, 1943, following said accident Joseph Jones died, from the facts stated, doctor, what is your opinion as to whether or not this electric shock could have caused his death or approximately contributed thereto?'

Before it was answered this question was amended to further assume that the decedent had had no heart trouble and worked every day prior to the time he received the electric shock. Upon the above hypothesis the doctor testified as follows:

'When you have an electric shock of high voltage, it is my understanding, that you have a complete contraction of all muscles. I presume that this man died of a heart condition. The heart itself is made up of muscle tissue and bound to have gone through the same thing the muscles of the body would, and I really believe the shock contributed to his death.

'It is a complete contraction of the muscles so that you have a bleeding of the muscles. This man may at the time of the accident had some bleeding in the muscle of the heart and as a result thereof it was a weakness of the heart itself. A severe electric shock causes a weakening of the muscle material and in this condition if he would have lifted anything heavy could have blown out a plug in the heart.'

The appellant contends that this testimony is all the evidence there is in the case that in any way tends to establish a causal connection between the electric shock suffered by the decedent on June 5, 1943, and his death in the following September, but urges, with unquestioned sincerity, that said testimony is so vague, speculative and conjectural that it constitutes nothing more than the witness' surmise or guess and therefore is not such substantial evidence as the law requires in support of a finding of ultimate fact.

It is admitted by both parties that the decedent died of coronary occlusion, a specie of ailment wherein the blood supply is blocked off from the heart muscle in a rather sudden attack. We think it will readily be agreed that the task of making an intelligent finding of fact on the question as to whether such a 'heart attack' in September could have any connection with an electric shock suffered three months previously would be greatly facilitated by the credible testimony of a witness or witnesses possessing expert knowledge of the effect of electricity on the human system Such expert witnesses are permitted to express opinions on fact within their knowledge or upon assumed facts supported by the evidence in the case and stated to them by way of hypothetical questions. We agree with the appellant in the general principle that expert opinion testimony should not be allowed to extend to the field of...