Opinion
33032.
DECIDED MAY 12, 1950. REHEARING DENIED JUNE 6, 1950.
Appeal; from Fulton Superior Court — Judge Shaw. February 8, 1950.
Edgar A. Neely Jr., Neely, Marshall Greene, for plaintiff in error.
T. Elton Drake, contra.
Since there is some competent testimony to support the award, the superior court did not err in its judgment affirming the award of the State Board of Workmen's Compensation.
DECIDED MAY 12, 1950. REHEARING DENIED JUNE 6, 1950.
At the time of the accident on June 8, 1949, Amos C. Nash, whom we shall call the deceased, was in the general employment of the Chevrolet Division of the General Motors Corporation, whom we shall call the defendant. The deceased had been so employed for approximately three months prior to the accident. On the morning of the accident, the deceased went to work about 7 o'clock. He was working with one H. W. Jones. They worked together in assembling automobile hoods. The deceased would pick up one end of the hood and Jones would pick up the other. After they had placed the hood on a jig, 13 rivets were inserted in the hood and clamped down by an automatic hammer. Approximately 20 hoods were assembled each hour. This meant that each hour the deceased and his partner would handle hoods approximately 40 times. The work was required to be done swiftly and continuously, but with little variation in the degree of work. The deceased lived in Buford, Georgia, and rode to and from his work in an automobile operated by one Johnson. The deceased would leave his home at about 5:20 in the morning and return in the evening at from 6:30 to 7:00 o'clock. The wife of the deceased testified that her husband had "spells" but she didn't say how often he had the spells but he complained of pains in his chest and consulted several physicians; that they had not treated him; that Dr. Richardson of Atlanta made cardiographs; that her husband was 34 years old and weighed 185 pounds; that her husband was in the service and did not get a "medical discharge" but received an "honorable discharge." Witness said the deceased felt very bad the morning of the day he died.
A Mr. Williams testified substantially: that he worked approximately 20 feet from the deceased and Jones; that witness rode with Johnson to work in the car with the deceased and that on the morning of the accident he had an argument or discussion with the deceased; that they had been arguing for two or three days about witness taking a shower and delaying the deceased approximately 15 minutes in returning home; that on the morning of the accident the parties riding in the car, "They had been going at me for two or three days about that [meaning taking a bath in the afternoon and delaying the trip home] and I brought it up about Johnson that morning." Witness informed Johnson that if it was inconvenient for witness to ride in Johnson's car that witness would go with someone else. Johnson informed witness that it was not inconvenient; whereupon witness informed Johnson that he should "put up or shut up . . that he could do something about it or hush." Witness did not know how long after this that it was before the deceased had the attack. Deceased was relieved before witness knew that he was sick. In response to a question as to whether witness and deceased were excited and angry at the time of said conversation, witness answered, "Not any more so than ever before. I wasn't but he seemed to be a little `hot' under the collar." Witness informed the deceased to kiss his ___________ or do something about it. Deceased turned away and nothing further was said. In about ten minutes thereafter, deceased was relieved, came back and went to first aid. On cross-examination, the witness testified that he and the deceased had been arguing for about 3 days; "We argued about different subjects all the time, almost anything. We never saw eye to eye on anything. . . Q. "There was nothing unusual about that argument [meaning the argument on the day of the accident] any more than any other argument that we had been having?" A. "We had been arguing all the time. We never had any fights." Witness further stated that he and the deceased never had any fight that morning the deceased died or at any other time. Witness was asked the question if he and the deceased were friends and witness answered that so far as he knew, they were, and that witness had asked the deceased to get an application for witness in the Masonic lodge. If the deceased had not been his friend, he would not have made such a request. Witness was asked the question if the argument between him and the deceased on the morning of the accident was any more serious than it had been all the times before, and witness answered: "No, sir, we argued all the time." Witness stated that he and the deceased argued about almost everything and that witness had taken a lot of kidding concerning the girl friend of the witness (witness was a single man, the deceased a married man). Witness Rivers, assembly line foreman of the deceased, testified: He described the work in connection with the assembling of the hoods. He testified that it involved a particular operation, the only difference between the hoods being the color; that one Mr. West relieved the deceased; that West informed the witness that deceased was going to first aid; that deceased had been gone for rather a long period; that West wanted the witness to see what was wrong; that witness started and met the deceased coming back; that deceased stated that he was sick or "something"; that he had an argument with Williams and he decided that probably the deceased had been overseas too long and that the deceased was highly excited; that the deceased had been to see the doctor and would be all right; that witness stopped the deceased and they sat down on a box to talk; that the deceased looked a little nervous; that the deceased wiped his arms with his hands and said that he (deceased) would be all right; that witness walked back 50 or 100 feet with the deceased and informed him that he, the deceased, could go home if he wished; that the deceased stated that he did not want to do that, that he was feeling all right after coming from first aid; that the deceased went back to his work on the assembly line; that in about 10 minutes from the time the witness talked to the deceased, the deceased had the seizure which resulted in death; that witness did not notice any direct nervousness in the deceased; that the deceased said he was going back to work; that the deceased had been doing the same work for some time; that the witness thought that the time the deceased went back to work that the deceased was all right. The director questioned the witness in detail concerning the work of the deceased.
Dr. J. P. Cooley qualified as an expert, testified: that he made a physical examination of the deceased in March previous to the date of the accident at the time the deceased made application for work with the defendant; that he made a complete examination including urinalysis; that he did not make a cardiograph; that he found no difficulty at that time; that the deceased did not claim to have any trouble with his heart or any trouble at all, and did not inform witness that he had consulted physicians prior to that time. This report of Dr. Cooley was put in evidence.
The same witness testified: that during the examination by the physician the deceased seemed to be excited, but that was natural; that at the time of the examination his pulse rate was a little fast and his blood pressure was within the normal limit, about ten points high; that after deceased had rested a little while, witness found him in the negative; that after the examination, the witness passed the deceased for heavy duty work; that on the morning of the seizure the deceased went to first aid and the witness saw the deceased within 3 or 4 minutes after the deceased arrived at first aid; that the deceased seemed highly nervous and excited, like he was perturbed about something; that the deceased complained of pains in his chest; that witness, after having inquired of the deceased if he was worried about something, told the deceased to go into the room and strip and that the witness would examine him; that witness then examined the employment card and found from it that the deceased would get a little "excited and all" that the deceased did not seem to be experiencing any marked shortness of breath or inability to breathe; that the deceased stated he felt rather bad; that the blood pressure and pulse were normal; that the deceased stated that he had no previous attacks, that he didn't have any trouble; that when the examination was finished the deceased seemed to be somewhat consoled about the examination after witness had informed him as to the normal condition of his blood pressure and pulse and stated that he felt better; that witness gave the deceased a liquid sedative; that deceased stayed at first aid about 15 minutes; that about 10 minutes later the deceased was brought to the office of the witness on a stretcher, unconscious. The doctor was then asked a hypothetical question concerning the type of work the deceased did for approximately 3 months prior to the time of the accident, and the deceased not having any trouble of any kind with his heart and chest and that on this particular morning the deceased had the argument with Williams who told the deceased to "put up or shut up" and other things which the doctor witness had heard from the witness stand — on the doctor being asked what, in his professional experience and opinion, was responsible for the heart attack which the deceased suffered on the morning of June 8, the witness answered: "I did think his highly emotional state caused it."
On cross-examination, the same witness testified that he did industrial work; that he was the defendant's physician; that he engaged in no special line of practice and that he was not a heart specialist; that one could have an inner tension and not show an accelerated blood pressure or pulse.
Dr. Blackford qualified as a specialist, testifying that 85 percent of his practice consisted of heart work. He was propounded the following question and the following answers were listed: "Q. `Dr. Blackford, if a 34 year old man weighing 195 pounds is employed on an automobile assembly line with a partner where hoods for Chevrolet automobiles are assembled from 18 to 20 an hour entailing the driving of some 23 rivets, and this patient or subject has pain in his chest, probably a year, and he seems to be perspiring, perspiration popping out on his face. He is relieved to go to the rest room and returns. This happened approximately three hours later; he went to work at seven o'clock. He has an attack sufficient for him to collapse and he dies — (Interrupting) In how long?' Q. `Right there, almost instantly. He collapses and dies. I said the rest room, but I mean first aid. He comes back and then collapses and dies there. Given those set of circumstances, and facts, that history in your opinion as a doctor, what would you say produced his death?' By Mr. Green: `I object, it is purely hypothetical.' By Mr. Drake: `Yes.' By Mr. Greene: `I object on the grounds it is not based on sworn evidence in this case. It doesn't take into consideration what it would mean assembling the hoods. Secondly, it assumes that the deceased was the only one that drove the 23 rivets which was not the case at all. I object to it on that ground.' By Mr. Drake: `I'll add to that that he had a partner to help him. There were two men working.' By The Director: `You might state to the doctor that one man was holding the rivets and one man was driving them.' By Mr. Drake: `That's right.' By the Director: `Both were not driving.' By Mr. Drake: `One was bucking and one was holding; there were two of them.' A. `Which one was that?' By Mr. Drake: `The one that died. Then the hood according to sworn evidence weighed approximately twenty pounds. I think that covers what's been testified in court.' By The Director: `You might tell him he was driving with a pneumatic hammer and averaged 7.21 rivets, 3/16 rivets, per minute. Q. `If he has an attack and dies almost instantly, what would you say produced his death?' A. `I would say the best bet would be coronary thrombosis. And I believe you said he had some pain and attacks in the chest for a year. That would increase the chances of coronary thrombosis.' Q. `It would be your diagnosis with those facts that he died of coronary thrombosis?' A. `Yes, sir. As I understand your question, he had been having this all along, sporadically.' Q. `Would that make any difference?' A. `He would have been better off if he had changed jobs.' Q. `The work that I outlined there, those hoods were lifted from a jig and back to the jig; they were lifted twice rather, eighteen or twenty times in an hour; there were two liftings, two men. He was working pretty fast. I'll ask you in your opinion, if a man has coronary thrombosis — if a man has a cardio-vascular disturbance, would that precipitate it?' A. `Of course the fact that a great many men do that and don't die from coronary thrombosis, it doesn't necessarily result in coronary thrombosis — you can't — I don't see how you can get away from the presumption that it did precipitate it.' Q. `You would think the work I outlined in that question would precipitate and aggravate it?' A. `More of a cause of precipitation because of the intensity of having to do that work so accurately and so quickly so as not to hold up the line.'
Cross-examination by Mr. Green: "Q. `Doctor, do people die from coronary thrombosis that do not — who have not engaged in any physical effort?' A. `Oh yes.' Q. `Can you give any percentages as to the number that die, who say, are at rest as compared with those that die while engaged in work?' A. `No, sir, I couldn't.' Q. `Doctor, the statisticians show about 75% who die from coronary thrombosis are at rest at the time of death or at the time of the attack.' A. `I haven't consulted anything from that point of view recently. But in my experience I have found that the majority has been those who were engaged in heavy effort or have been heavy eaters within the last few hours.' Q. `Do you base that upon the fact you have been called upon a great many times to testify to hypothetical questions or cases before the board?' A. `I said upon my experience with patients I have been looking after.' Q. `Did you ever treat Mr. Nash during his life?' A. `No, sir.' Q. `Did you ever see him so far as you know, professionally?' A. `No, sir, I don't think so.' Q. `What are some of the other things that bring on an attack of coronary thrombosis?' A. `Straining, excitement, anger, emotion.' Q. `I didn't hear you.' A. `Straining, excitement, emotion, strong emotion.' Q. `You are not talking about physical, but mental?' A. `Yes, sir.' Q. `Would the fact that the man has a fear that he might suffer an attack of this kind be a precipitating cause?' A. `Oh, if he has a chronic fear extending over a year, it wouldn't help him any.' Q. `Suppose he has a chronic fear for two weeks and did go so far as to see a fellow employee out there, and the evidence later shows not engaged in strenuous effort, but who had this same trouble and died, and this deceased looked at him and then said to a fellow worker, "That's the way I am going to die." Would that tend to corroborate your views that this thing was preying on his mind, that heart trouble he had?' A. `It sounds like it was preying on his mind. I don't think there is any doctor, middleage, who doesn't have that preying on his mind, including me, all the time.' Q. `You spoke of emotional strain, of anger. Suppose you had that present and then an attack followed emotional strain, would you connect the emotional strain with it, with the attack?' A. `Would you mind repeating the question?' Q. `If I understood you a few minutes ago, you said that emotional strain or anything that produced anger would tend to precipitate an attack of this kind' A. `Yes, sir.' Q. `Well, now, if this deceased had just before his attack been engaged in an argument with a fellow employee and they got pretty excited about it and then the attack followed, wouldn't you say this was the causal relation between emotional strain incident to excitement and argument more likely than anything else to cause the attack?' By Mr. Drake: `Just a minute. I don't think the evidence went that far, your Honor. I think the evidence was that they were arguing all the time, nothing particular exciting at that time in the record.' By The Director: `Well, I think they brought out the fact that they had been arguing. I don't think there is any shop where there are mechanics that there isn't a little kidding going on. I have never seen a shop where they weren't kidding one another; they have something going on all the time.' Q. `Doctor, your answers to questions are not going to be influenced by the obscenity which is a uniform practice of matters of this kind?' A. `No, sir. If he had an "honest to God" argument, it might have caused it.' Q. `It might have caused it?' A. `If he had an argument — if he got angry with somebody.' Q. `Assuming for the purpose of this question that he did have an "honest to God" argument to the point where he was excited, and assuming immediately following that argument the attack came on, and assuming further that on this occasion, that is June 8, 1949, the deceased had been doing identically the same kind of work that he had been doing for more than three months during which time he apparently did not have an attack, wouldn't it be more reasonable to assume that the attack which he did have on that occasion was the result of the heated argument rather than the work he had been engaged in?' By Mr. Drake: `I renew my objection to it. There isn't any evidence of a heated argument in the record, only the "jawing" back and forth. They did it all the time.' By Mr. Greene: `I am assuming that he had an "honest to God" argument so you won't have any misunderstanding what I mean. Assuming that the same state of facts, bearing in mind he was doing identically the same kind of work under the same identical circumstances that he had been doing for three months, usually working eight and a half to nine hours a day, but on the day of the attack there had been an "honest to God argument" just immediately before the attack, could you not say in reason assuming from the hypothetical standpoint, that his attack was a result of the heated argument or of the "honest to God argument?" A. `I have seen patients in my practice who have gotten to the point of blows, and have sometimes, and sometimes have died in the excitement of a serious alteration. If this man had been really mad enough to come to blows with the fellow he was arguing with, I think that might have some effect on it.' Q. `Don't you think that would be more than likely to produce it than two and a half hours in regular work?' A. `It probably would' Q. `In answer to Mr. Greene's question of "honest to God argument" if he was to come to blows — ' By Mr. Greene: `I said mad enough to come to blows.' Q. `Suppose this argument went on continually, every day they were "jawing" back and forth at each other, the man who was arguing — this man rode to and from his work with him and the argument was about him holding up the party going home and the fact they couldn't get away on time, would that have any bearing on it?' A. `If these two men were good friends, they traveled back and forth together, and were always kidding, probably there wouldn't be any emotion involved.'"
(a) We have set out the evidence in detail more than we usually do. It is conceded by distinguished counsel for the defendant that if there is sufficient competent evidence in the record to support the findings of fact, such findings are binding upon this court. Under Code § 114-710, this court is required to reverse the award if there is no sufficient competent evidence in the record to warrant the director not making the order or decree of which complaint is made, or if "the order or decree is contrary to law." It is mandatory upon this court under Code § 114-710 to examine the record to see if there is sufficient competent evidence in the record to support the award. Our attention is called by counsel for the defendant to the case of United States Fidelity Guaranty Company v. Brown, 68 Ga. App. 706 (3, 4), ( 23 S.E.2d 443), which reads: "Finding of fact based on mere conjecture can not be upheld. . . Where the injury can, with equal probability, be attributed to one of two accidents, from the same proof, the evidence is without selective application to either, and it remains conjecture only as to which caused the injury."
Upon an examination of the facts in the Brown case, it will be seen that the contention there was as to whether the injury to the eye was caused by an accident which occurred in 1935 or 1936 or by an accident which occurred in 1941. We will not here go into the facts concerning these two accidents which occurred several years apart. The single director and the full board in that case made an award denying compensation. On appeal to the superior court, that court reversed the award. The Court of Appeals affirmed the judgment of the superior court. Upon reading that case, it will be discerned that the board found that the accident of 1935 or 1936 caused the injury, and not the accident of 1941. This court affirmed the judgment of the superior court on the grounds that there was not sufficient competent evidence to sustain the award of the board to the effect that the injury resulted from the accident which occurred in 1935 or 1936 but that there was sufficient competent evidence to sustain the award for the injury which occurred in 1941. This court affirmed the judgment of the superior court with direction. That case differs from the instant case in that there were two accidents which occurred several years apart and the evidence as a matter of law showed that the injury resulted from the accident of 1941. In the instant case, there are not two accidents involved and not two theories equally consistent involved, under the evidence. In the instant case it is simply, as we see it, a conflict in the evidence of the claimant on one hand, and the defendant on the other, as to what was the proximate cause of the injury, and leading to the conclusion under the evidence as to whether the argument combined with the physical condition of the deceased produced the injury, or whether the heavy work and the physical condition of the deceased caused the injury. It was for the fact-finding body to determine, under all the evidence, as to what caused the seizure. The fact-finding body being the judges as to the credibility of the witnesses, being well authorized under the evidence to conclude that the argument had nothing to do with the seizure but that the heavy work, and the physical condition of the deceased, was the sole proximate cause of the seizure. If we are correct in this view, and we think we are, there is sufficient competent evidence to sustain the award. The principles of law as enunciated in the Brown case in headnotes 3 and 4 are good as to abstract principles of law but do not require a reversal in the instant case.
(b) An earnest and enthusiastic attack on the expert testimony of Dr. Blackford is made. This goes to the effect that his opinion and conclusions are not based upon the assumed facts and to the effect that an expert opinion based upon facts of other witness or witnesses which do not state the facts is without probative value. Counsel cited, in this connection, Code § 38-1701; Yarbrough v. Yarbrough, 202 Ga. 392, 398 (8) ( 43 S.E.2d, 329); 20 Am. Jur. 662; Hines v. Pacific Mills, 214 S.C. 125 ( 51 S.E.2d 383); Travelers Insurance Co. v. Thornton, 119 Ga. 455 (2) ( 46 S.E. 678). In the statement of facts, we have called attention to the testimony of Dr. Blackford in full and have in connection therewith set out the colloquy as between counsel for both parties and the questions by the hearing director. We have done this with the view that the facts of the situation may appear in the record. While it is true that perhaps there is some variance as between the exact rule as it applies to testimony of an expert in giving his opinion, as to facts testified to by others, yet at the same time, as aside from this, we think that there is sufficient competent testimony in this regard to support the award. Dr. Cooley gave as his opinion that the argument was the proximate cause of the seizure and not the work, while Dr. Blackford was of the opinion that the work caused it. While it is true that Dr. Blackford was asked by counsel for the defendant as to, and made a statement as to, altercations and getting angry and making statements that the deceased was mad enough to fight, yet there were witnesses other than experts who testified that the argument on the day of the seizure was no more intense than previous arguments about other matters and many things between these men. It follows that it was within the province of the fact-finding body to pass upon these issues of fact which arose by reason of the conflicts in the testimony of the doctor who testified for the defendant and the doctor who testified for the claimant.
(c) Our attention is called to American Mutual c. Ins. Co. v. Harden, 64 Ga. App. 593, 595 ( 13 S.E.2d 685), to the effect that as the facts are consistent with either of two theories they prove neither. While that principle of law is true, as an abstract principle of law, and applicable to that case under its facts, after a careful consideration, we are inclined to the opinion that the facts in the instant case distinguish it from that case.
Our attention is also called to Woodruff v. American Mutual Liability Ins. Co., 67 Ga. App. 554, 557 ( 21 S.E.2d 298). The facts in that case are quite different from those in the instant case as will be seen by a comparison thereof.
Our attention is further called to Overstreet v. Metropolitan Life Insurance Co., 69 Ga. App. 459, 460 ( 26 S.E.2d 115). That case is a suit based on an insurance policy for an accidental death. The principle of law under the facts of that case is entirely different, as a study will reveal, from the principles of law applicable to workmen's compensation law.
(d) We think the instant case, under its facts, is controlled by the decisions in the cases of Brown v. Lumbermen's Mutual Insurance Co., 49 Ga. App. 99 ( 174 S.E. 359), Williams v. Maryland Casualty Co., 67 Ga. App. 649 ( 21 S.E.2d 478), and Fidelity Causality Co. v. Adams, 70 Ga. App. 297 ( 28 S.E.2d, 79). In the latter case the court said: "If the employment of the employee contributes to the injury it is an accident under our compensation law and is compensable, it matters not what combined with the employment to produce it." See also United States Casualty Co. v. Richardson, 75 Ga. App. 496 ( 43 S.E.2d 793); Standard Accident Insurance Co. v. Handspike, 76 Ga. App. 67 ( 44 S.E.2d 704), and citations therein.
Since there is some competent testimony to support the award, the superior court did not err in its judgment affirming the award of the State Board of Workmen's Compensation.
Judgment affirmed MacIntyre, P. J., and Townsend, J., concur.