Washington v. Greenville Mfg. and Mach. Works

• Citation: 223 So.2d 642
• Decision Date: 26 May 1969
• Docket Number: No. 45269,45269
• Parties: Clara Gentry Ford WASHINGTON, Dependent of Lorensy Washington, Deceased v. GREENVILLE MANUFACTURING & MACHINE WORKS and United States Fidelity & Guaranty Company.
• Court: United States State Supreme Court of Mississippi

Page 642

223 So.2d 642

Clara Gentry Ford WASHINGTON, Dependent of Lorensy Washington, Deceased v. GREENVILLE MANUFACTURING & MACHINE WORKS and United States Fidelity & Guaranty Company.

No. 45269.

Supreme Court of Mississippi.

May 26, 1969.

Rehearing Denied July 3, 1969.

Wroten, Orlansky & Miller, Greenville, for appellant.

Campbell, DeLong, Keady & Robertson, Greenville, for appellees.

INZER, Justice:

This is a workmen's compensation case. Clara Gentry Ford Washington, appellant, is the wife of the deceased, Lorensy Washington, formerly employed by appellee, Greenville Manufacturing and Machine Works. A claim was made on behalf of appellant under the Mississippi Workmen's Compensation Act due to the death of her husband. After a hearing the attorney referee found as follows:

1. Lorensy Washington was found dead on the floor just inside the sliding door to the Metal Fabrication and Cutting Shop of the Greenville Manufacturing and Machine Works at approximately 6:40 a.m. on November 4, 1964, where he worked as a layout and design man;

2. The death of Lorensy Washington arose out of and in the course of his employment;

3. The deceased had no prior existing disease, handicap or lesion which contributed to his death within the meaning of Section 4 of the Mississippi Workmen's Compensation Act; and

4. The average weekly wage of Lorensy Washington at the time of his death was $106.45.

The Mississippi Workmen's Compensation Commission reversed the attorney referee on appeal and in a two to one decision found that 'the death of Lorensy Washington did not arise out of and in the course of his employment but was due solely to an underlying pre-existing arteriosclerotic heart disease.' The majority indicated that they based their opinion on the medical testimony offered by the appellees. The Circuit Court of Washington County affirmed the Commission and appeal was had to this Court.

The unconverted facts developed at the hearing are as follows. November 4, 1964, at about twenty minutes before seven a co-worker of Lorensy Washington discovered him lying on the floor just inside the building housing the department wherein the decedent worked at their place of employment. The location of decedent was some 18 to 20 inches past a large metal door through which he usually passed upon arriving at work every morning. It is not clear whether he was discovered being on his back or his stomach, however, the witness testified to noticing a small cut on the decedent's forehead above the left eye. There was also a small amount of blood on the floor. The decedent's hat was lying on the floor a few feet from his head. Another employee was called and attempted to take decedent's pulse. Finding no pulse an ambulance was called and deceased was taken to the hospital where he was pronounced dead on arrival.

It was not established by direct evidence at what time the decedent had arrived at his place of employment that morning or what transpired after he arrived, however, his usual routine was shown. The appellant testified that the decedent was expected to begin work at 7 A.M. but would usually leave to open up the shop at around 6:30 A.M. which was a part of his duties. He would drive the several blocks between his residence and place of employment and park on the street. He would then walk through the gate and across the grounds to the large metal sliding door in the rear of the building. The decedent had a key to this door and would open it by pulling to the left with the weight of his body. Usually the door was relatively easy to open. After opening the door he would proceed to prepare for the day's work. The circumstantial evidence, his position on the floor and the proximity of his hat, while not esablishing in any way that he followed his usual routine without deviation or incident is not in conflict with that conjecture.

Dr. Leon Lenoir, Jr., internal medicine specialist, testified for appellee that since 1959 he had been treating the decedent for hypertensive cardiovascular disease. He said that he was notified on November 5, 1964, that decedent had been brought into It is clear from the testimony of the doctor, which the majority of the commission found so persuasive that his conclusions were based on two assumptions which, however logical or reasonable, do not rise to the level of substantial evidence upon which to overcome the presumption of work related death arising under the circumstances of his case. First the doctor assumed that the decedent had died of a heart attack. He based this assumption on his knowledge of the history of the heart disease and a lack of any other superficially apparent cause of death even though he admitted failing to examine the laceration on decedent's head. Secondly, he assumed that the decedent's employment had not contributed to his heart attack. He based this assumption on information of the decedent's 'usual' morning routine although there was no direct evidence as to what had actually transpired on the morning in question. This second assumption is patently conjectural and was not proper opinion testimony. The doctor had nothing upon which to base his testimony that the decedent's job did not in any way contribute to his death even assuming that he died of a heart attack. On cross examination the doctor stated in part as follows:

the hospital and he examined him within minutes. He determined that decedent was in fact dead. Dr. Lenoir signed the death certificate which listed the immediate cause of death as cardiac arrhythmia, type undetermined due to arteriosclerotic heart disease. There was no autopsy performed but it is clear how the doctor diagnosed the cause of death from his testimony. 'The facts that I based it on would be my knowledge of this man and his health and also what I was told by the people who would have known his work habits.' From this basis the doctor testified that in his opinion Lorensy Washington died of a heart attack which was due 100 percent to a pre-existing condition and had no relation to his employment. On cross examination the doctor was asked about the laceration on the decedent's forehead and he admitted he did not remember examining it. He indicated, however, that he was sure that if it had been sufficiently serious to have been the cause of death he would have noticed it.

Q. If he had been doing something which was strenuous when he arrived at his place of employment would that not have been a material factor in helping you to determine the cause of death?

A. Well, if he had been undertaking any severe or unusual effort I would think that it would be important.

Q. In what manner, Doctor?

A. We, medically speaking, feel it unwise for people who had this condition to undertake any unusual strenuous activities.

Q. For what reason?

A. It has a bad effect. It may overstrain their heart.

Q. And, in this case, we don't know whether or not he was engaged in any unusual or strenuous activity just before he died, do we, as a matter of fact?

A. We don't know what he was doing.

Q. Right, in connection with your examination of his body at the General Hospital, Doctor, did you observe blood on his head?

A. Well, in all honesty, I can't recall that I did of first-hand knowledge. I was told about this inquiring into the circumstances around his death in order to try to form an opinion about the cause of death so I could sign that death certificate; and I have, from what I was told, I have no reason to doubt that he suffered some abrasion or contusion on his forehead or head when he fell.

Q. You do not recall, then, Doctor, having examined the extent of any A. I think this, had it been any injury of any moment, I most certainly would have examined it.

injury which might have produced this blood on his head.

Q. But, just speaking from the standpoint of recollection, you don't recall the extent of your examination in this regard?

A. If you mean can I describe exactly that laceration or contusion, I cannot.

Q. Could this have been, then, a laceration or an incised wound or puncture wound?

A. I think that anything that could have inflicted an injury to this man which would have in any way caused his death would have created enough evidence of trauma that it would have certainly been obvious.

He also indicated in determining what caused the decedent's death it would have been material assistance to him to know what he was doing immediately prior to his death. When he was asked the question, 'When someone is not there to observe and record them, there is necessarily surmise and speculation and conjecture as to these symptoms or circumstances, is there not?' The doctor's answer was, 'If a conclusion of why he died is not to be reached, yes.' The doctor was further asked the following hypothetical question on direct examination:

That the uncontradicted proof in this case shows that on November 5, 1964, Lorensy Washington left his home at approximately 6:30 A.M. for work, driving his automobile, as was his custom. That he made no complaints whatsoever to his wife with regard to feeling ill or unwell and seemed to be as usual. That it was his invariable practice upon reaching the place of business where he worked to park his automobile, open a gate, go to the back door of the shop, unlock the shop door, slide the door back on rollers and enter the shop. That at approximately 6:40 A.M. on the day in question, that is only some 10 or 15 minutes after leaving his home; he was discovered by a fellow employee lying just inside the sliding rolling door to the shop, the door only partially opened. That there were no signs of life. That one fellow employee took his pulse but was unable to obtain any pulse. That an ambulance was immediately called and he was taken to the emergency room of the General Hospital, where you saw him shortly thereafter. (Emphasis added)

Appellant objected to this question and correctly pointed out the reasons why it was objectionable. The...