Willis v. Heath

• Decision Date: 24 May 1937
• Citation: 107 S.W.2d 228
• Parties: WILLIS et al. v. HEATH.
• Court: Tennessee Supreme Court

107 S.W.2d 228

WILLIS et al. v. HEATH.

Court of Appeals of Tennessee, Middle Section.

May 24, 1937.

Certiorari Denied by Supreme Court July 3, 1937.

Appeal in Error from Circuit Court, Rutherford County; T. L. Coleman, Judge.

Action by Mrs. Nettie Heath against Jack Willis and another. Judgment for plaintiff, and defendants appeal in error.

Reversed, verdict of jury set aside, and suit dismissed.

James D. Richardson, of Murfreesboro, for plaintiffs in error.

C. C. Jackson and Barton DeMent, Jr., both of Murfreesboro, for defendant in error.

FAW, Presiding Judge.

Mrs. Nettie Heath sued Jack Willis and Ben Reeves, in the circuit court of Rutherford county, to recover damages for the alleged wrongful death of her husband, W D. Heath, and obtained a verdict of a jury, and judgment thereon, for $2,500 and costs of suit.

After the overrulement of their motion for a new trial, the defendants appealed in error to this court, and are here insisting, through assignments of error, brief, and oral argument of counsel at the bar, that there was no evidence adduced in the cause upon which a verdict for plaintiff and against defendants could be predicated, and that, therefore, the trial judge erred in declining to peremptorily instruct the jury, on motion of defendants, to return a verdict in favor of the defendants.

For convenience, we will continue to refer to Mrs. Heath as plaintiff, and to Willis and Reeves as defendants.

There was undisputed evidence before the jury that, on October 4, 1935, a truck, owned by defendant Reeves and driven by defendant Willis, was allowed, by the negligence of Willis, to roll backward against W. D. Heath (then the husband of plaintiff) and press him against a gate with sufficient force to injure his arms to the extent hereinafter described; that said W. D. Heath (then 63 years of age) died on November 29, 1935, about 56 days after he suffered the injuries above mentioned, and that his death resulted from "a stroke of apoplexy," which, according to the proof, is the same as a "cerebral hemorrhage."

It is likewise an undisputed fact of record that defendant Willis was a servant of defendant Reeves, and was driving the truck within the course and scope of his employment as such servant, at the time and place said W. D. Heath was injured as aforesaid.

It is provided by section 8236 of the Code that "the right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, and, in case there is no widow, to his children or to his next of kin; or to his personal representative, for the benefit of his widow or next of kin, in either case free from the claims of creditors."

It is conceded in this court that the proximate cause of the injuries to the arms of W. D. Heath, suffered by him on October 4, 1935, was the aforesaid negligent act of defendant Willis, but it is insisted for defendants that there is no evidence that the injuries thus suffered by W. D. Heath caused his death. This contention of defendants presents the sole issue for decision by this court.

The injuries suffered by W. D. Heath on October 4, 1935, are described by Dr. A. J. Jamison, who examined and treated his arms shortly after the accident, as follows:

"He had some bruises on his arms and complained a good deal of pain, but there was no fracture and no bad laceration, but in between his radius and ulna, it seemed to be more sore than anywhere else, evidently something on the truck pressed that between the truck and the gate."

There is evidence that, although W. D. Heath had suffered from high blood pressure for a time before he was injured as aforesaid, his general health was "fairly good" and he ate "hearty" and slept "soundly," but that after the accident he lost appetite and weight and did not sleep "soundly" — that he was restless and "up and down" frequently at night, "complained of hurting so bad he could not sleep."

W. D. Heath lived on a farm in Rutherford county, but he was a constable, and after his injury he was in Murfreesboro and continued to discharge his duties as such officer — serving process right along — until a day or two before his death. He "waited on the grand jury" at the October term (1935) of court in Murfreesboro, but "some one would have to carry the books" to the grand jury room for him.

It is an undisputed fact on the record that the immediate cause of the death of W. D. Heath was a cerebral hemorrhage, which is also known in medical terminology as apoplexy. It is insisted for plaintiff that the jury could have found from the evidence that the aforesaid injury to the arms of her husband was the producing cause of the cerebral hemorrhage, and was thus the cause of his death. It is thus seen that the record presents a question involving the pathology of disease; that is, the science treating of the nature, causes, progress, manifestation, and results of diseases. See "pathology" in Webster's International Dictionary.

Issues involving the pathology of disease must ordinarily be determined upon testimony of qualified expert witnesses. American National Insurance Co. v. Smith, 18 Tenn.App. 222, 74 S.W.(2d) 1078; Standard Life Insurance Co. v. Strong, 19 Tenn. App. 404, 424, 89 S.W.(2d) 367. See, also cases cited in Jones on Evidence (2d Ed.) vol. 1, page 812, footnote 8.

In the instant case, two practicing physicians who had treated W. D. Heath, viz., Dr. A. J. Jamison and Dr. E. B. Allen, both of Murfreesboro, were examined as witnesses for the plaintiff; and five physicians and surgeons, viz., Dr. W. G. Robinson, Dr. J. R. Gott, Dr. John Cason, and Dr. B. W. Rawlings, all of Murfreesboro, and Dr. H. M. Tigert, of Nashville, were examined as expert medical witnesses for the defendants. The qualifications of no one of these seven medical witnesses are questioned on the record.

There is also a stipulation of record "that Dr. J. M. Shipp, a practicing physician in Smyrna, attended Mr. Heath at his death, and he would state that he died from apoplexy or cerebral hemorrhage."

The death certificate signed by Dr. Shipp was also read into the record, as follows:

"Date of death, November 29th, 1935. I certify I attended the deceased from November 29th, 1935, to November 29th, 1935, and I last saw him alive on November 29th, 1935. Death was said to have occurred on the date stated above at four o'clock in the morning.

"Causes of death were as follows: Apoplexy, November 29th, 1935. Contributory causes of importance not related to the principal cause. (Blank).

"Signed, Dr. J. M. Shipp, M.D.

"Certified to by Robert H. White."

Dr. Jamison had been consulted professionally by W. D. Heath at times for several years before Heath's death. He testified that Heath had some teeth pulled a number of years ago, and "after that he had a little neuritis in his arms and hands, and after that he had that hypersensitive condition on and on"; that about 20 months before Heath's death his blood pressure was about 150 to 160 which (Dr. Jamison stated) was not much acceleration for a man of Heath's age, as the general average is about 140; that he saw Heath several days after his arms were injured, and Heath "complained a good deal" — said "he could not sleep and it pained him all the time" — but that "he got rid of some of the soreness in his arms."

Dr. Jamison was asked and answered further questions as follows:

"Q. Supposing that he died from apoplexy, what has a tendency or will cause apoplexy? A. High blood pressure and arteriosclerosis.

"Q. When Mr. Heath would come to you and complain did he worry about his condition or not? A. Not so much. He was a happy go-lucky type of fellow, and he would say, `I reckon I will get better after a while', and so on.

"Q. Will worry have a tendency to cause high blood pressure? A. If you have high blood pressure and worry it will cause more of an acceleration.

"Q. If those leaders or arteries or muscles in his arm are injured and bruised, would that have a tendency to stop the flow of the blood so as to cause enough blood pressure to get apoplexy? A. I don't think so. Not materially.

"Q. If his blood pressure was a little above normal before this injury and after the injury his blood pressure went higher, and gradually going down, nothing else happening, other than this injury, could you say that this injury had anything to do with the acceleration in his blood pressure? A. Fright or worry or pain will have a tendency to accelerate the blood pressure.

"Q. Then the acceleration of blood pressure is one thing that will cause apoplexy? A. If you have arteriosclerosis, which he did, have a hardening of the arteries, anything that would raise the blood pressure, worry or fright, when it caused the blood pressure to go up, necessarily would cause more pressure on those arteries.

"The Court: What causes apoplexy? A. Arteriosclerosis.

"Q. What is apoplexy? Does that mean cerebral hemorrhage? A. They are synonymous terms, apoplexy and cerebral hemorrhage.

"Q. You take hardening of the arteries and high blood pressure, both, worry and pain is a bad combination? A. You always have some acceleration of blood pressure when you have hardening of the arteries. You take your blood pressure, — or take some of these older men, their blood pressure is accelerated because their arteries are not as elastic as yours or some other man."

We also quote from the cross-examination of Dr. Jamison as follows:

"Q. Mr. Heath died from apoplexy? A. Yes, sir.

"Q. That is the bursting of a blood vessel in the brain? A. Yes, sir.

"Q. Or a cerebral hemorrhage? A. Yes, sir.

"Q. Can you figure how a bruise on the arm would cause apoplexy two months later? A. It would be kind of hard. If a man suffers pain it might cause a very slight acceleration...