Victor Wine & Liquor, Inc. v. Beasley, 30872

• Decision Date: 03 May 1961
• Docket Number: No. 30872,30872
• Citation: 141 So.2d 581
• Parties: VICTOR WINE & LIQUOR, INC., and The Travelers Insurance Company, Petitioners, v. Harry BEASLEY and The Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 581

141 So.2d 581

VICTOR WINE & LIQUOR, INC., and The Travelers Insurance Company, Petitioners, v. Harry BEASLEY and The Florida Industrial Commission, Respondents.

No. 30872.

Supreme Court of Florida.

May 3, 1961.

On Rehearing April 4, 1962.

Rehearing Denied June 12, 1962.

Leo M. Alpert, Miami, for petitioners.

Allen Clements, Miami, Paul E. Speh and Burnis T. Coleman, Tallahassee, for respondents.

ROBERTS, Justice.

The claimant, a laborer, sought workmen's compensation for a disability diagnosed as a coronary occlusion. The facts are that claimant had two mild, non-disabling premonitory attacks on Friday, December 5, 1958, and then suffered an acute heart attack on the following Tuesday while engaged in his usual employment of lifting, carrying and stacking cases of whiskey on a truck.

The deputy commissioner found that, '* * * as a result of his heart attack claimant was temporarily and totally disabled from date of said accident * * * and is entitled to workmen's compensation * * *'. His award of compensation was appealed to the Commission, which found that there was '* * * ample competent substantial evidence to sustain the Deputy's finding that claimant's condition was causally related to his employment'. The employer and carrier have brought this petition for writ of certiorari.

The issue may be stated as follows: Is a heart attack suffered by an employee, while at his usual work with its accustomed physical exertions, a compensable injury 'by accident'? We think the question must be answered in the negative.

We are once again confronted with the problem of whether we have workmen's compensation, or whether we have health insurance. In General Properties Co. v. Greening, 154 Fla. 814, 18 So.2d 908, 911, we said, 'This very valuable statute, [Chapter 440, Florida Statutes] while fulfilling a long standing public need, was not designed to take the place of general health and accident insurance. As was said by this court, * * * in * * * Protectu Awning Shutter Co. et al. v. Cline, 16 So.2d 342 * * *: 'The purpose of the act is to shoulder on industry the expense incident to the hazards of industry; * * * and to ultimately pass on to the consumers of the products of industry such expense. Our act affords no relief for disease or physical ailment not produced by industry.'', and further, 'can the courts, in their sympathy for the unfortunate, question the wisdom and policy of the legislature in this regard? * * * The wisdom and policy of legislative acts is a matter for the legislature to determine.'

Thus far the legislature has not seen fit to include as compensable a condition such as is here involved.

In Cleary Bros. Const. Co. v. Nobles, 156 Fla. 408, 23 So.2d 525, 526, deceased's wife brought a claim for compensation where decedent working on a hot day and after unloading cement sacks had suffered a heart attack and had fallen either dying or dead from a boxcar. The court stated: 'It does not appear that deceased had been subjected to any unusual strain or overexertion uncommon to the type of work he was accustomed to doing. The fact that he collapsed at his work, even though the work was arduous, is not sufficient, within itself, to make out a case for recovery * * *'. In a later case, Firestone Tire & Rubber Company v. Hudson, Fla.App., 112 So.2d 29, where the court denied compensation to a claimant who had suffered a heart attack while at his usual strenuous job of changing tires, the district court commented on whether we have workmen's compensation or health insurance and then found that there was no accident and the claimant had not been exposed to a danger not ordinarily risked by the public.

The only instance in which we find any support for claimant's contention is Standard Oil Co., Inc. v. Gay, Fla., 118 So.2d 212 where the claimant was watching and lifting cases of oil cans off a conveyor and thereafter suffered an attack of angina. Upon scrutiny, we conclude that the award of compensation was there made because there was no evidence or testimony to negate the affirmative testimony of the claimant and his witnesses.

In this case we fail to find there is competent evidence which accords with logic Accordingly, certiorari is granted, the order reviewed is quashed and the cause is dismissed.

and reason that claimant was subjected to overexertion uncommon to the type of work that he was accustomed to or that claimant's heart attack was an accident which arose 'out of and in the course of employment'

THOMAS, C. J., and THORNAL and O'CONNELL, JJ., concur.

DREW, J., dissents with opinion.

DREW, Justice (dissenting).

The majority opinion holds:

'* * * we fail to find there is competent evidence which accords with logic and reason that claimant was subjected to overexertion uncommon to the type of work that he was accustomed to or that claimant's heart attack was an accident which arose 'out of and in the course of employment'.'

The findings of the deputy come to us with a presumption of correctness. ¹ The full commission in its review determined that there was competent substantial evidence to sustain the deputy's finding that claimant's condition was causally related to his employment. Not only did the full commission in reviewing the order of the deputy commissioner determine his findings of fact were supported by the evidence ² but they also determined the order based thereon was correct under the law. ³ Under these conditions, I do not think we are empowered to overthrow the finding by substituting our view of the evidence for that of the deputy who found that the claimant's condition was causally related to the employment. ⁴ The effect of the majority opinion, in my judgment, is to substitute our analysis of the evidence for that of the deputy commissioner based on the record in which there is medical testimony to the effect that the claimant, while at work, was subjected to greater strain than usual because the coemployees of the claimant were pushing to the claimant cases of whiskey weighing approximately 40 pounds each to be loaded on 'Is a heart attack suffered by an employee, while at his usual work with its accustomed physical exertions, a compensable injury 'by accident'?'

a truck as fast as they could be picked up and stacked. They would come on the conveyor four or five at a time to the extent of 175 cases in all. Neither these facts nor the fact that the heart attack occurred on the job were in dispute. The majority opinion, however, answers negatively the question:

We held in Fidelity and Casualty Co. v. Moore, Fla.1940, 196 So. 495 that, for an injury to arise out of and in the course of employment, it must occur within the period of employment at a place where the injured employee may reasonably be and while he is reasonably fulfilling the duties of his employment and in Alan Wright Funeral Home, Inc. v. Simpson, Fla.1957, 93 So.2d 375 that the test to determine whether an accident arises out of and in the course of the employment is the relationship of the event to the employment.

The evidentiary aspect of the severity of the exertion is not for this Court to decide as a factual issue since the record which supports the finding of fact of the deputy commissioner serves our purpose to determine if the proper evaluation was made of this testimony logically and reasonably. A comparison of the finding of the deputy commissioner and the transcript on this point bears out the sufficiency of that finding.

Accident has been defined by statute as:

'(19) 'Accident' shall mean only an unexpected or unusual event or result, happening suddenly. A mental or nervous injury due to fright or excitement only or disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or narcotic drugs, shall be deemed not to be an injury by accident arising out of the employment. Where a pre-existing disease is accelerated or aggravated by accident arising out of and in the course of the employment, only acceleration of death or the acceleration or aggravation of disability reasonably attributable to the accident shall be compensable.' Section 440.02, Florida Statutes [1959] F.S.A.

and judicially construed in the case of Gray v. Employers Mutual Liability Insurance Co., Fla.1953, 64 So.2d 650, 651 to the effect that '* * * [i]t is enough, then, if there is an unexpected result, even though there was no unexpected cause, such as a slip, fall or misstep, in order to constitute an 'accident' within the meaning of the Workmen's Compensation Law; * * *.'

The majority opinion, in stating the heart attack was not caused by accident, has by implication necessarily held that neither was there an unexpected cause giving rise to the heart attack nor was the attack per se an unexpected result. Assuming, arguendo, the reasoning is correct, the whole premise loses its validity with the examination of the medical evidence which reveals that the heart attack was the result of bipartite factors. One, the slow insidious development of atherosclerosis where the coronary artery circulation of an individual is no longer adequate for the heavy physical work which he may have been accustomed to performing most of his life without any difficulty; two, at one point of claimant's work history physical effort was so strenuous for the pre-existing physical condition that it gave rise to a particular specific identifiable severe physical strain which in turn was the precipitating and aggravating factor resulting in the acute myocardial inforction.

Stated in another fashion, the employer hired respondent accepting him in the physical condition in which he found him, ⁵ working him hard and without interruption for about two years, until such time as his The specificity of the myocardial infarction is unquestioned as both medical specialists testified that before December 9, 1958, claimant had no such condition. However,...