Opinion
32975.
DECIDED JUNE 7, 1950. REHEARING DENIED JUNE 28, 1950.
Appeal; from Fulton Superior Court — Judge Pharr. January 6, 1950.
Neely, Marshall Greene, for plaintiffs in error.
E. O. Dobbs Jr., Emory L. Rowland, contra.
1. If, in a workmen's compensation case, the immediate precipitating cause of the injury to the employee is over-exertion within the necessary and regular course of his employment, the case is compensable, although the attack from which the employee died may not actually have incapacitated him until after his day's employment was ended.
2. Although a hypothetical question propounded to an expert medical witness, while substantially correct, may have been subject to a certain looseness of statement, nevertheless, where, in a protracted cross-examination, the witness clearly stated his opinion based upon the testimony as shown by the record, the director, as a court judging both the law and the facts, is presumed to have based his decision upon that part of the testimony which was competent rather than that part of the testimony which was incompetent.
DECIDED JUNE 7, 1950. REHEARING DENIED JUNE 28, 1950.
The defendant in error, Minnie Meeks, herein referred to as the claimant, filed a claim with the State Board of Workmen's Compensation for compensation for the death of her husband, Daniel L. Meeks, here styled the employee, against his employer, Pre-Cast Concrete Company and its insurance carrier, Liberty Mutual Insurance Company. An award was entered by the single director in favor of the claimant and this award was affirmed on appeal by the full board and by the Superior Court of Fulton County respectively.
The evidence revealed that the employee was a man of from 50 to 55 years of age; that he was employed as a laborer by the concrete company, and that his work generally was of a heavy nature, but not generally as heavy or as hurried as that performed by him during the three days preceding his death, November 16, 17 and 18, 1948; that during this time he was employed at a place other than the place of business of the company and was engaged in carrying concrete roof slabs, and unloading and placing the same. He worked with a witness, E. C. Garrison, the men being engaged in lifting the slabs, of a weight between 60 and 75 pounds each, from an elevator, and carrying them across the roof to the point where they were to be used by the workmen. The testimony of Garrison was substantially that each block had to be carried at least 10 yards, except for those which were loaded into a "buggy"; that the work was necessarily hurried because others were waiting for the elevator; that it was steady throughout the day, with no rest period except for lunch; that the employee lagged in carrying his half of the load as the day (November 18) wore on; that around two o'clock he stated to the witness that the work was too heavy for him and he could not do it; that later in the afternoon the witness called another workman to help, saying that "Mr. Meeks is just about to go down," but that the workman was not available and the employee continued as best he could until quitting time. The employee's son testified that when he and his father went to the company dressing room to change clothes preparatory to going home he complained of a pain in his breast; that he continued to complain on the way home; that his face had no color and that he appeared to be suffering; that he stated at that time that the work had got so hard for him it looked like he was going to have to quit. The company foreman drove the two men from the company office to a point about half way to their home. They then got on a bus which took them in front of the house in which the employee lived. The claimant testified that her husband was very sick when he came into the house; that his face was ashen; that he complained a great deal and apparently had chest pains; that he immediately lay down, later ate a very light supper, continued to grow worse, was taken to the hospital late that night and died the following afternoon. Dr. Minor Blackford qualified as an expert witness for the claimant, testified that he saw the employee in Crawford Long Hospital during the morning of November 19, that he was suffering from coronary thrombosis; that he was in a dying condition at that time; that he was kept alive by means of an oxygen tent and stimulants until late in the afternoon; that the cause of death was a coronary occlusion brought about by diseased arteries and precipitated by the heavy work which he had been doing. There was also medical testimony on behalf of the defendant employer to the effect that the work was not a contributing proximate cause of the death.
Error is here assigned on the judgment of the superior court affirming the award.
1. The director stated as a finding of fact that the cause of death was coronary thrombosis, generalized arteriosclerosis being a contributing cause; that the claimant was doing hard laborious work on November 18 and that there is medical testimony to support the finding that the strain placed on the claimant as a result of this heavy work contributed to his death. There is evidence in the record to support this finding. As stated in Fidelity Casualty Co. v. Adams, 70 Ga. App. 297 ( 28 S.E.2d, 79): "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." In Maddox v. Buice Transfer Storage Co., 81 Ga. App. 503 (59 S.E.2d 329) the court held: "If the immediate precipitating cause of the employee's death was exertion during the time he was lifting trunks and boxes, even though the attack from which he died was delayed for a time, then his dependents would be entitled to benefits." See also Griggs v. Lumbermen's Mutual Casualty Co., 61 Ga. App. 448 (6 S.E.2d. 180); London Guaranty Accident Corp. v. Wallace, 35 Ga. App. 571 ( 134 S.E. 334).
It is contended by counsel for the employer that the testimony of Meeks (the son), Garrison (the fellow-worker), and the claimant were all hearsay, and that in consequence the reply of Dr. Blackford to any hypothetical question based on such testimony should be stricken from the record under the provisions of Code § 38-1710 providing that opinions shall be given on the facts as proved by other witnesses. If the evidence is in fact inadmissible this contention is sound. What the employee told others after he arrived home concerning his physical condition is a mere narrative of past events and has no probative value. Hodge v. American Mutual Liability Ins. Co., 57 Ga. App. 403 ( 195 S.E. 765); Merritt v. Continental Casualty Ins. Co., 65 Ga. App. 826 ( 16 S.E.2d 612). The claimant, however, had a right to testify as to the physical appearance of her husband when he entered the house, the amount of supper he ate, his apparent pain and exclamations indicating the same, and the fact that he was put to bed and a doctor summoned. Such testimony is not subject to the objection that it is a self-serving declaration, but is relevant and material to his physical condition. In Travelers Insurance Co. v. Mosley, 75 U.S. 397 ( 19 L. ed. 437), it is held: "Declarations of a party himself, to whomsoever made, are competent evidence, when confined strictly to such complaints, expressions and exclamations as furnish evidence of a present existing pain or malady, to prove his condition." This quotation was adopted as a headnote in Latham v. Hartford Accident Indemnity Co., 60 Ga. App. 523 ( 3 S.E.2d 916), and the following was there stated: "In the instant case, the declarations should not be considered as in the nature of a narrative of where, when and how the accident occurred, but should properly be construed as being confined to such complaints, exclamations and expressions as usually and naturally accompany and furnish evidence of a present existing pain or malady; and being, under the circumstances, the best possible testimony that could be adduced as to the cause of the accident, they were admissible." The testimony of the claimant and her son as to their observation of the employee and his physical condition after he returned home were admissible for the same reason.
On the other hand, the testimony of the son that his father stated, immediately after ceasing work and while changing clothes preparatory to leaving the job, that he had worked mighty hard, that the work was too heavy, that he would have to quit, and that he had a pain in his chest — these remarks being of the same character and apparently a continuation of those made to his fellow employee during the actual progress of the work, and all of which occurred either immediately during the work or immediately thereafter, before returning home, may be considered together as a part of the res gestae and were therefore admissible. The line of division between those declarations necessarily so closely related to the injury as to be free of the suspicion of device or afterthought, and those not free from such suspicion, is a close one in many cases, but it is apparent here that the declarations of the employee were made spontaneously and were, in point of time, not too remote for consideration. The testimony of the son as to his remarks while changing clothes was therefore properly considered, the case being more similar on its facts to that of United States Fidelity Guaranty Co. v. Bohannan, 36 Ga. App. 34 ( 135 S.E. 319) than to that of Bolton v. Columbia Casualty Co., 34 Ga. App. 658 ( 130 S.E. 535).
2. The medical testimony to the effect that the exertion of employment was an immediate precipitating cause of the attack is further objected to on the ground that the hypothetical questions directed to the medical expert were asked by an attorney who had not himself heard the testimony, and were replied to, not on the basis of the testimony in the record, but on the basis of information received by the witness from the claimant's lawyer before the trial, and which were unauthorized by any evidence in the record. The record reveals, however, that the hypothetical question was substantially supported by competent evidence. It is true that some of the evidence in the record was hearsay, and, not coming within any of the exceptions to the rule against hearsay evidence, was without probative value. However, there was sufficient competent evidence to substantially authorize the question in the form given. In addition to this, the cross-examination of the doctor clearly disclosed that his opinion, taking into consideration only facts in evidence, was that the employment of the claimant and his exertion in connection therewith, was an immediate precipitating cause of the attack which brought about his death. The Board of Workmen's Compensation or a single director thereof sits as a court, judging both the law and the facts, rather than as a jury. A jury considers all the evidence in the record. It is incumbent upon the party objecting to such evidence to have it ruled out in order to avoid its consideration. On the other hand, the Board of Workmen's Compensation or a director thereof in the capacity of a court sifts out inadmissible evidence and considers only that which is admissible under the rules of evidence, whether actually ruled out or not.
Dr. Blackford testified that if the man worked harder than usual, or if he worked very hard for three days, and if he complained toward the end of this time and showed pain which continued to increase, that he would consider the exertion a precipitating cause. He further testified that if the man went home feeling apparently normal, ate a good meal, and showed no symptoms until about two or three hours later, he would not be sure, that there would not be more than a fifty-fifty chance of the work being involved in the injury. He gave his opinion as to other hypothetical states of fact also. From his entire testimony the director was authorized to find that there was a causal relationship between the work and the attack, based on this testimony as a whole, which was contradicted but not impeached by another medical witness.
The ultimate contention of counsel for the employer is that the finding of the board rests upon an inference based on an inference. It was held in Lumbermen's Mutual Casualty Co. v. Bridges, 81 Ga. App. 395 ( 58 S.E.2d 849), that in cases of this kind an inference that the deceased suffered from a heart disease and an inference that the physical effort of his employment contributing to his death are collateral inferences, having as their basis the connection of cause and effect and the observations of human experience, rather than a conclusion based upon the pyramiding of inferences. In this case the diagnosis of coronary occlusion and arteriosclerosis was based upon a physical examination while the employee was still in life by the physician who examined him and, there being no testimony to the contrary, it should in any case be treated as a fact rather than an inference, the doctor testifying positively as a result of his examination that the employee suffered from this disease.
The trial court did not err in affirming the award of the Board of Workmen's Compensation.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.