Opinion
No. 41570.
November 7, 1960.
1. Workmen's compensation — pre-existing disease or infirmity — where employment aggravates.
Where overwhelming weight of evidence, in proceeding before Workmen's Compensation Commission, reflected that duties of decedent's employment aggravated, accelerated, or combined with pre-existing disease to produce his death from cerebral hemorrhage, and five doctors who had seen and treated him at various times over period of years were of that opinion, testimony of two specialists for employer and insurer, who testified from hypothetical questions but who had no personal knowledge of condition, could not warrant finding to contrary. Sec. 6998-01 et seq., Code 1942.
2. Workmen's compensation — improper ground — right result.
Where Workmen's Compensation Commission based order on improper ground, a presumption which disappeared in the light of fully developed evidence, but it reached right result, its order would be affirmed.
3. Workmen's compensation — causal connection — presumption where death occurs on job is rebuttable.
Presumption of causal connection where death occurs on job is rebuttable and not conclusive.
Headnotes as revised by Ethridge, J.
APPEAL from the Circuit Court of Smith County; HOMER CURRIE, Judge.
Butler, Snow, O'Mara, Stevens Cannada, Jackson, for appellants.
I. The presumption that the death of an employee found dead at his post of duty arose by accident out of and in the course of his employment is a rebuttable and not a conclusive presumption. Such presumption is created only after a definite accident has occurred. It is error to presume both "an accidental injury" and that same arose "out of and in the course of employment".
A. Such presumption is rebuttable and once evidence is produced to refute the presumed fact, the presumption vanishes, and the burden shifts to the claimant to prove his case. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So.2d 381, 59 So.2d 294; City of Hammond v. Moriarty, 119 Ind. App. 206, 85 N.E.2d 273; Finderson v. Century Electric Co. (Mo.), 227 S.W.2d 740; Ladson Motor Co. v. Croft, 112 Ga. 275, 92 S.E.2d 103; Majure v. Alsup Associates, 216 Miss. 607, 63 So.2d 113; Ossery v. Burger-Baird Engraving Co. (Mo.), 253 S.W.2d 805; Pearson v. Dixie Electric Power Assn., 219 Miss. 884, 70 So.2d 6; Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So.2d 357; Shannon v. City of Hazlehurst, 237 Miss. 828, 116 So.2d 546; Stamps v. Century Electric Co. (Mo.), 225 S.W.2d 493; Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706, 165 S.E. 850; Toole v. Bechtel Corp. (Mo.), 291 S.W.2d 874; Winters Hardwood Dimension Co. v. Harris' Dependents, 236 Miss. 757, 112 So.2d 227; 100 C.J.S., Sec. 513 p. 465; 4 Schneider's Workmen's Compensation Text, Sec. 1334 p. 590; 12 Schneider's Workmen's Compensation Text, Sec. 2528 p. 291.
B. This Court has erroneously presumed that the injury not only arose in the course of employment but also that it was "accidental". The only presumption is that the injury arose "in the course of employment", not that it also was "accidental". Claimants here are entitled to no presumption. American General Insurance Co. v. Jones (Texas), 250 S.W.2d 663; Barker v. General Motors Corp., 173 N.Y. Supp.2d 42; Belyus v. Wilkinson, Gaddis Co., 115 N.J. Law 43, 178 A. 181; Buff v. Columbia Baking Co., 215 S.C. 41, 53 S.E.2d 879; Capitol Paper Co. v. Conner, 81 Inc. App. 545, 144 N.E. 474; Caradine Hat Co., 109 S.W.2d 893; Casey v. Hansen, 238 Iowa 62, 26 S.W.2d 50; Chillstrom v. Trojan Seed Co., 242 Minn. 471, 65 N.W.2d 888; Cleid v. Carr Bros., 300 N.Y. 270, 90 N.E.2d 185; Cole v. Lewis Cigar Mfg. Co., 63 A.2d 293; Czuszko v. Golden-Gary Co., 94 Ind. App. 47, 177 N.E. 466; Demann v. Hydrolic Engineering Co., 192 Mich. 594, 159 N.W. 380; DeMoss v. Evens H. Fire Brick Co., 225 Mo. App. 473, 37 S.W.2d 961; Dietz v. Eagle Grocery Co., 14 N.J. Misc. Rep. 240, 184 A. 216; Driscoll v. Henry Gillen Sons Lighterage, 226 N.Y. 568, 123 N.E. 863; Duff v. St. Louis Mining Milling Corp., 363 Mo. 944, 245 S.W.2d 472, 255 S.W.2d 792; Eggers v. Industrial Comm. of Ohio, 157 Ohio St. 70, 104 N.E.2d 681; Fisher v. City of Decatur, 99 Ind. App. 667, 192 N.E. 844; Fulmer v. Aetna Cas. Surety Co., 85 Ga. App. 102, 68 S.W.2d 180; Goddu's case, 323 Mass. 397, 82 N.E.2d 323; Gregory v. Porter (Tenn.), 322 S.W.2d 591; Griffin v. Anderson Motor Service Co., 227 Mo. App. 855, 59 S.W.2d 805; Halloway v. Carnegie-Illinois Steel Corp., 173 Pa. Supp. 137, 96 A.2d 171; Havens v. Natchez Times Pub. Co., Inc., 238 Miss. 121, 117 So.2d 706; Henry v. Odell Motor Car Co., 191 Minn. 92, 253 N.W. 110; Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032; Hunt v. Gasseteria, Inc., 105 Ind. App. 197, 12 N.E.2d 992; Hunter v. American Wire Co., 293 Pa. 103, 141 A. 635; In Re Crawford, 205 S.C. 72, 30 S.E.2d 841; Jefferson County Stone Co. v. Bettler, 304 Ky. 87, 199 S.W.2d 986; Keeler v. Sears Roebuck Co., 121 Conn. 56, 183 A. 20; Krell v. Maryland Dry Dock Co., 184 Md. 428, 41 A.2d 502; Lannahan v. Hydraulic Press Brick Co., 55 S.W.2d 327; Loew v. Burrough of Union Beach, 56 N.J. Supp. 93, 151 A.2d 568; McCoy v. Simpson, 346 Mo. 72, 139 N.W. 950; Malloy v. Cauldwell Wingate Co., 135 N.Y. Supp.2d 445; Marra Bros. v. Cardillo, 154 F.2d 357; Marston v. Curtis Wright Corp., 1 N.J. Supp. 107, 62 A.2d 696; Martin v. Industrial Comm., 75 Ariz. 403, 257 P.2d 596; Mechanics Furniture Co. v. Industrial Board, 281 Ill. 530, 117 N.E. 986; Medina v. New Mexico Consolidated Mining Co., 51 N.M. 493, 118 P.2d 343; Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165; Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610; Mountain Ice Co. v. Durkin, 6 N.J. Misc. Rep. 1111, 144 A. 6; National-Helfrich Potteries Co. v. Collar, 107 Ind. App. 225, 23 N.E.2d 620; Norris v. New York Cent. R. Co., 246 N.Y. 307, 158 N.E. 879; Ocean Accident Guaranty Co. v. Lovern, 90 Ga. App. 708, 83 S.E.2d 862; Ohlsen v. Dill Co., 222 Minn. 10, 23 N.W.2d 15; O'Leary v. Dielschneider, 204 F.2d 810; Owens v. Ocean Forest Club, 186 S.C. 97, 12 S.E.2d 839; Progress Laundry Co. v. Cook, 101 Ind. App. 235, 198 S.E. 807; Reed v. Langford, 197 Tenn. 587, 276 S.W.2d 735; Reed v. Sensenbaugh, 229 Mo. App. 883, 86 S.W.2d 388; Reed v. Automatic Electric Washer Co., 189 Iowa 964, 179 N.W. 323; Rick v. Industrial Comm., 266 Wis. 460, 63 N.W.2d 712; Riley v. Henderson, 218 F.2d 752; Ryan v. Comm. of Ohio, 72 N.E.2d 907; Saunders v. New England Collapsible Tube Co., 95 Conn. 40, 110 A. 538; Sawyers case, 315 Mass. 75, 51 S.W.2d 949; Shauvin v. American Mutual Liability Ins. Co., 17 La. App. 187, 134 So. 450; Simpson v. Michigan Valve Foundry Co., 260 Mich. 543, 245 N.W. 803; Smith v. Levis-Zukoski Mercantile Co., 223 Mo. App. 743, 14 S.W.2d 470; Smyth v. Pinkerton Nat. Detective Agency, 163 N.Y. Supp.2d 442; Southern Motor Lines v. Alvis, 200 Va. 168, 104 S.E.2d 735; Southwestern Portland Cement Co. v. Simpson (N.M.), 135 F.2d 584; Sparks Milling Co. v. Industrial Comm., 293 Ill. 350, 127 N.E. 737; Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706, 165 S.E. 850; Stauffer v. Susquehanna Collieries Co., 116 Pa. Supp. 277, 176 A. 740; Stone v. Blackmer P. Pipe Co., 224 Mo. App. 319, 27 S.W.2d 459; Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E. 504, 120 A.L.R. 67; Swift Co. v. Industrial Comm., 350 Ill. 413, 183 N.E. 746; Tappato v. Teplick Eisenberg Co., 133 Pa. Supp. 231, 2 A.2d 545; Taylor v. Director, Public Works, 121 Ind. App. 650, 100 N.E.2d 831; Tewes v. Industrial Comm., 194 Wis. 489, 215 N.E. 898; Travelers Ins. Co. v. Cardillo, 140 F.2d 10; Travelers Ins. Co. v. Hobbs, 22 S.W.2d 168; Tully v. Gibbs Hill, 12 N.J. Misc. 275, 171 A. 313; Union News Co. v. Oldham, 74 Ga. App. 209, 39 S.E.2d 318; Western Grain Sugar Products Co. v. Pillsbury, 173 Cal. 135, 159 P. 423; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 P. 491; Williams v. Planters Realty Co., 160 S.W.2d 480; Wilson v. St. Louis Terminal Distributing Co. (Tenn.), 278 S.W.2d 681; Woodburn v. Oliver Machine Co., 257 Mich. 109, 241 N.W. 159; Woolworth Co. v. Industrial Accident Comm., 17 Cal.2d 634, 111 P.2d 313; Anno. 120 A.L.R. 683; 100 C.J.S., Sec. 513 p. 462 et seq.; 1 Larson's Workmen's Compensation Law, Sec. 10.32 note 41 p. 101.
C. The mere fact of disability or injury is not proof that an accident occurred. An accident must be some unexpected, unanticipated event. Alabama Pipe Co. v. Wofford, 253 Ala. 210, 610, 46 So.2d 404; Ingall's Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So.2d 645; Ingall's Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Insurance Dept. of Miss. v. Dinsmore, 233 Miss. 569, 102 So.2d 691, 104 So.2d 296; Manikowski v. Morris Run Coal Mining Co., 163 Pa. Supp. 118, 60 A.2d 344; McCormick v. National City Bank of N.Y., 303 N.Y. 5, 99 N.E.2d 887; Simon v. Pine, 167 Pa. Supp. 386, 74 A.2d 674; 1 Larson's Workmen's Compensation Law, Sec. 10.32 p. 104.
II. A hypothetical question must contain an accurate and fair statement of the facts of record, and if the hypothesis is incomplete and contains other opinion evidence, any opinions based thereon are inadmissible and should be accorded no weight. Hamilton v. Huebner, 19 N.W.2d 552, 163 A.L.R. 1; Williams Bros. Co. v. McIntosh (Miss.), 84 So.2d 692; 50 Am. Jur., Workmen's Compensation, Sec. 451; 100 C.J.S. 551; Dunn's Mississippi Workmen's Compensation, Sec. 171.
III. House Bill 69, enacted by the 1960 general session, Mississippi Legislature, and effective April 23, 1960, is a procedural change in the compensation act which is immediately applicable to all cases not finally decided before the effective date thereof. American Surety Co. of N.Y. v. Boykin, 54 So.2d 398; Gulf M. M.R. Co. v. Weldy, 193 Miss. 59, 8 So.2d 249; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555; Sec. 6998-01, Code 1942; 58 Am. Jur., Sec. 404 p. 844; 99 C.J.S., Sec. 21(d) p. 140; Black's Law Dictionary (3d ed.) p. 1672.
Alton Massey, Kosciusko, for appellees.
I. It is generally held that when it is shown that an employee was found dead at a place where his duties require him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master's business, there is a presumption that the accident arose out of and in the course of the employment within the meaning of the compensation acts. Majure v. William H. Alsup Associates, 216 Miss. 607, 63 So.2d 113; Pearson v. Dixie Electric Power Assn., 219 Miss. 884, 70 So.2d 6; Anno. 120 A.L.R. 684.
II. The sudden and unexpected breaking of some portion of the internal structure of the body, as in the case of cerebral hemorrhage — or the failure of some essential function thereof, as in the case of heart failure, paralysis, and similar afflictions, brought about by the exertions of the employee while engaged in the performance of his duties, or by the conditions of his employment, even without any external happening of an accidental nature, is to be regarded as an accidental injury within the meaning of the Act. Insurance Dept. of Miss. v. Dinsmore, 233 Miss. 569, 102 So.2d 691, 104 So.2d 296; 58 Am. Jur., Sec. 255 p. 756; Dunn's Mississippi Workmen's Compensation, Sec. 51 p. 42.
(Hn 1) The Workmen's Compensation Commission awarded death benefits under the Act to appellees, dependents of Claude C. Neal, deceased. Neal was a highway patrolman, working in the drivers' license division, examining applicants for such licenses in several counties. He had a long-standing, severe care of hypertension, and died during working hours from a cerebral hemorrage. The overwhelming weight of the evidence reflects that the activities and duties of his employment aggravated, accelerated, or combined with his pre-existing disease to produce his death. Five doctors who had seen and treated deceased at various times over a period of years were of that opinion. The testimony of two specialists, who testified for appellant from hypothetical questions but who had no personal knowledge of the employee's condition, would not warrant a finding to the contrary. The case is controlled by a long line of decisions dealing with this issue. W.G. Avery Body Co. v. Hall, 224 Miss. 51, 79 So.2d 453, 80 So.2d 53 (1955); Insurance Dept. of Miss. v. Dinsmore, 233 Miss. 569, 102 So.2d 691, 104 So.2d 296 (1958); Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So.2d 359 (1959); Lewis v. Trackside Gasoline Station, 233 Miss. 663, 103 So.2d 868 (1958); Poole v. R.F. Learned Son, 234 Miss. 362, 103 So.2d 396 (1958); Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So.2d 391, 104 So.2d 298, 106 So.2d 383, 683 (1958); Central Electric Power Ass'n v. Hicks, 236 Miss. 378, 110 So.2d 351, 112 So.2d 230 (1959); see also 58 Am. Jur., Workmens' Compensation, Sec. 255.
(Hn 2) The Commission based its order upon an improper ground, a presumption, but since it reached the right result the order is affirmed. (Hn 3) The presumption of causal connection where death occurs on the job is a rebuttable and not a conclusive presumption. The evidence fully developed the circumstances of Neal's death, and the presumption disappeared. Winters Hardwood Dimension Co. v. Harris' Dependents, 236 Miss. 757, 762, 112 So.2d 227 (1959). The great weight of the evidence reflects a causal connection.
There is no merit in the other assignments of error.
Affirmed.
McGehee, C.J., and Arrington, Gillespie and McElroy, JJ., concur.
ON SUGGESTION OF ERROR
The employee, Claude C. Neal, departed this life on February 24, 1958 while employed by the Mississippi Highway Patrol.
On April 23, 1960 the legislature amended the Workmen's Compensation Act so as to require a fair interpretation of the provisions of the act instead of the liberal interpretation which the Court had theretofore been giving to the act under Sec. 22 of Chapter 354, Laws of 1958, as amended.
The opinion rendered in this cause on November 7, 1960 cited some cases which were decided prior to the passage of the 1960 act. The suggestion of error herein makes the point that those cases were not applicable to the 1960 act for the reason that they were decided under the old law. However, the 1960 act expressly provides that it shall take effect from and after its passage. There is nothing contained therein that indicates that the legislature intended for the same to be retroactive as to injuries sustained prior thereto.
The Court is of the opinion that the new act deals with a substantive right of the employee instead of an adjective right.
We have carefully examined and studied the suggestion of error and brief thereon and the Court has concluded that the same should be overruled.
Suggestion of error overruled.
Arrington, Ethridge, Gillespie, and McElroy, JJ., concur.
In view of the majority holdings in Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So.2d 359, and Central Electric Power Association v. Hicks, 236 Miss. 378, 110 So.2d 351, 112 So.2d 230, I concur.