Opinion
No. 39768.
November 7, 1955.
1. Workmen's compensation — notice of injury — actual knowledge of foreman.
Where employer's foreman in charge of deceased drove deceased to hospital after heart attack, employer had actual knowledge of the injuries to deceased within meaning of Workmen's Compensation Statute barring claim for compensation if not presented within thirty days, unless employer had actual notice of injury. Sec. 6998-18, Code 1942.
2. Workmen's compensation — employee's failure to given notice of injury — where no prejudice shown.
Where employer made no showing that he was prejudiced by failure of claimant to give notice of industrial accident in manner contemplated by statute, he could not plead statute requiring filing of claim within thirty days after injury, as a bar to claim filed after such time. Sec. 6998-18, Code 1942.
3. Workmen's compensation — pre-existing heart trouble — causal connection — compensable.
In workmen's compensation proceeding wherein widow sought to recover benefits for death of deceased, evidence sustained finding that death of deceased, who had a systolic murmur and was stricken with a fatal heart attack on first day of work as a nut sacker, was caused by his employment.
Headnotes as approved by Roberds, P.J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, Judge.
H.H. Parker, Poplarville, for appellants.
I. The Hearing Officer, full Commission, and the Circuit Court erred in their refusal to sustain the motion of the defendants that the claim should be dismissed for the reason that no notice was given by the claimant as required by statute. Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So.2d 645; Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; Pine v. State Industrial Comm., 78 A.L.R. 1294; Sec. 6998-18(a), Code 1942.
II. The Hearing Officer, the full Commission, and the Circuit Court erred in considering the medical testimony given by claimant's doctor, Leo Stewart, and on cross-examination Dr. H.B. Cowart, for the reason that the hypothetical questions forming the basis, or foundation of such testimony were not based on the true facts, or proof, as shown by the record. Birchett v. Hundermark, 145 Miss. 683, 110 So. 237; Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Dillon v. Gasoline Plant Constr. Corp., 222 Miss. 10, 75 So.2d 80; Woolner v. Spalding, 65 Miss. 204, 3 So. 583.
III. The proof is insufficient to support the findings of the Hearing Officer, the burden being on the claimant to prove her case. Bounds v. Teche Lines, 182 Miss. 638, 179 So. 747; Claughton v. Leavenworth, 204 Miss. 595, 37 So.2d 776; Cowart v. Pearl River Tung Co., supra; Dillon v. Gasoline Plant Constr. Corp., supra; Equitable Life Ins. Co. v. Mitchell, 201 Miss. 66, 29 So.2d 88; Fischer v. Gloster Lbr. Builders Supply Co. (Miss.), 57 So.2d 871; Gregory v. Williams, 203 Miss. 455, 35 So.2d 451; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; J. B. Mfg. Co. v. Cochran, 216 Miss. 336, 62 So.2d 378; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148; Pearson v. Dixie Elec. Power Assn., 219 Miss. 884, 70 So.2d 6; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Smith v. St. Catherine Gravel Co., supra; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298.
William H. Stewart, Poplarville, for appellee.
I. The foreman had actual notice of the injury and death, and no proof was offered to show that the appellants had been prejudiced by appellee's failure to give a more formal notice of the injury and death. Pepper v. Barrett, 225 Miss. 30, 82 So.2d 580; Sec. 6998-18, Code 1942.
A. Alabama. Ex parte M. Carmell Coal Co., 209 Ala. 96; Webb v. Nat. Foundry, 213 Ala. 605, 105 So. 693; Secs. 7568-69, Alabama Code.
B. California. Benner v. Ind. Acc. Comm., 26 Cal.2d 346, 159 P.2d 24; Secs. 5400-03, California Code.
C. Colorado. Kettering v. Fox, 77 Colo. 90, 234 P. 464; Secs. 310, 362, Colorado Statutes Annotated of 1935.
D. Idaho. Rivera v. Johnston (Idaho), 225 P.2d 858 (Code identical with Mississippi); Secs. 6244-47, 6343, Idaho Code.
E. Kansas. Long v. Watts, 129 Kan. 489, 283 P. 654; Roberts v. Charles Wolff Packing Co., 95 Kan. 723, 149 P. 413; Art. 5 Chap. 44 Sec. 19, General Statutes of 1935 (Statute same as ours except provides that lack of notice is no bar unless it be found that employer prejudiced thereby).
F. Louisiana. Clark v. Cooperage Co., 157 La. 135, 102 So. 96; Secs. 1291-95, L.S.A.
G. Maine. Smith v. Safety Boiler, 119 Maine 552, 112 A. 516; Chap. 50 Secs. 17-19, Maine R.S.
H. Massachusetts. Massachusetts first held notice to be jurisdictional but later following the majority rule held lack of notice was a mere defense which could be waived. In re Richs Case, 301 Mass. 545, 17 N.E.2d 908; Chap. 152 Secs. 41-44, General Laws of Massachusetts.
I. Michigan. Curtis v. Slater, 194 Mich. 259, 160 N.W. 659; Act 10 of 1912; Secs. 8431-34, Michigan Code.
J. Montana. Lindblom v. Assurance Corp., 88 Mont. 488, 295 P. 1007; Sec. 2933, Montana Code.
K. New Hampshire. Mulhall v. Nashua, 80 N.H. 194, 115 A. 449; Chap. 178 Secs. 15-18, New Hampshire Public Laws.
L. New Jersey. Heinz v. Western Electric, 75 A. 149; Chap. 15 Secs. 35:15-18, R.S. Tit. 34.
M. Oklahoma. Consolidated Fuel v. Ind. Comm., 85 Okla. 1921-24-13358.
N. Rhode Island. Shea v. Gamco, Inc., 98 A.2d 864.
O. South Carolina. Young v. Conoco, 210 S.C. 146, 41 S.E.2d 860; Secs. 22-23, Workmen's Comp. Act.
P. Tennessee. Greener v. Dupont, 188 Tenn. 303, 2195 S.W.2d 185; Mayberry v. Chemical Co., 160 Tenn. 459, 26 S.W.2d 148; Sec. 6873, Tennessee Code.
Q. Wisconsin. Pellett v. Ind. Comm., 162 Wis. 596, 156 N.W. 956; Secs. 102, 12, Workmen's Comp. Act of Wisconsin.
R. Also, England holds that lack of notice may be waived. Davies v. Collieries, 2 B.W.C.C. 157; Anno. 78 A.L.R. 1306.
S. Also, New York, and the U.S. Harbor Workers' Act, provide by statute that lack of notice must be pleaded, or waived.
T. Only the following states still hold that notice is jurisdictional: Connecticut, Missouri, Illinois, New Mexico, and Vermont. The very wording of our statute, whereby lack of notice can be waived if knowledge and no prejudice are present, shows an intent to merely make notice a matter of defense. Most of the other states allow the Industrial Board to excuse lack of notice if there is no prejudice shown. Comm. v. Adair (Nev.), 217 P. 348; Railway Express Co. v. Harper (Ga.), 29 S.E.2d 434; Tice v. Ind. Comm. (Oregon), 195 P.2d 188.
II. Generally, where actual knowledge of the injury is shown, the burden of proving prejudice shifts to the employer. Anno. 92 A.L.R. 523; Malone's Louisiana Workmen's Comp. Law Practice, Sec. 381 pp. 483-84.
III. There was ample proof upon which to base the doctors' opinions and the Referee's finding of fact. Barry v. Sanders Co., 211 Miss. 656, 52 So.2d 493; Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Fischer v. Gloster Lbr. Builders Supply Co. (Miss.), 57 So.2d 871; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582.
Leslie John died as a result of a heart attack on February 18, 1953, while engaged in his duties as a servant of Pearl River Tung Company. Irene John, his widow, filed this claim under the Mississippi Workmen's Compensation Law. The claim was allowed by the attorney-referee, the full Commission and the trial judge. Pearl River Tung Company, the employer, and New Amsterdam Casualty Company, its insurance carrier, appeal to this Court.
(Hn 1) Appellants first say the employer was given no notice of the injury within thirty days after it occurred as required by Section 6998-18 Vol. 5-A, Miss. Code 1942, Recompiled, and for that reason no liability exists against the employer. There are two answers to that contention. First, the stated section provides: "No claim for compensation shall be maintained unless within thirty (30) days after the occurrence of the injury actual notice was received by the employer, or by an officer, manager or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior shall be sufficient. Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee's failure to give notice * * *". No representative had been designated by the employer to receive notice. However, the foreman in charge of the labor, including John, was present when John had his attack. This foreman placed John in a motor vehicle and himself drove the vehicle in an effort to get John to the hospital. John died before reaching the hospital. Therefore, the employer had actual knowledge of the injury as provided in the foregoing section. (Hn 2) The second answer to the contention is that there is no showing whatever that the employer was prejudiced by failure of claimant to give notice in the manner contemplated by the statute. Ingalls Shipbuilding Corporation v. Byrd, 215 Miss. 234, 64 So.2d 645; Pepper v. Mrs. Ed Barrett, decided October 3, 1955, No. 39,711.
Appellants further say that counsel for claimant in propounding hypothetical questions to the doctors, assumed facts which were unsupported by testimony. We have diligently examined the testimony and are of the opinion that there was evidence to support the assumed facts embodied in the hypothetical questions. And, in addition to that, a careful search does not disclose that appellants objected to any of the hypothetical questions when they were propounded. The contention under consideration is not well taken.
Appellants next say the proof does not support the claim for compensation. The day John died was the first day he had worked for this employer. Appellants say the proof is undisputed that he then had a pre-existing heart trouble and that he died from that trouble. On the other hand, claimant invokes the rule set out in Cowart v. Pearl River Tung Company, 218 Miss. 472, 67 So.2d 356, quoted from Larson on Workmen's Compensation Law, as follows:
"Pre-existing disease or infirmity of the employee does not disqualify a claim under the 'arising out of employment' requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought." Again in the Cowart case, this Court quoted the rule set out in Peoria R. Terminal Company v. Industrial Board, 279 Ill. 352, 116 N.E. 651, in these words:
"Even where a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under certain circumstances which can be said to be accidental, his death results from injury by accident * * *". See also Avery Body Works v. Hall, 224 Miss. 51, 79 So.2d 453.
The evidence discloses that John had been under the treatment of a doctor for a heart ailment about a year. The doctor did not regard his condition as severe or immediately dangerous. His doctor testified "His heart was slightly enlarged and he had what we call grade 1 or 2 systolic murmur." He said John, in his opinion, had had a "mild attack." John had been driving a truck. Part of the time he had transported workmen to and from the tung oil fields of appellant Tung Company. On the day of his death he had started working for appellant Tung Company gathering tung nuts. He was what was called a "sacker". The nuts were gathered from the ground by pickers and placed in hampers or baskets. These weighed some twenty-five to thirty pounds. The sacker came behind the pickers. He was furnished sacks. He lifted the hampers from the ground and poured the nuts from the hampers into sacks; then closed and tied the neck of the sacks, and hung the sacks onto the nut trees for the nuts in the sacks to dry. The pouring of the nuts from the hampers into sacks and lifting the sacks into the trees where they were fastened to the limbs to dry required considerable exertion. A sacker, according to testimony, usually sacked for five or six pickers. There is evidence here that John was sacking for thirteen pickers. He had told the pickers to slow down; that they were driving him too fast. He started to work at seven o'clock in the morning and he was heard to say at twelve o'clock, when worked ceased for lunch, that up to that time he had sacked three hundred sacks. This accident happened on February 18, 1953. It is in evidence that when he became ill about 1:15, after work had been resumed, he was drenched in perspiration, and underwent a violent vomiting attack. He expired in about four minutes. Dr. L.O. Stewart, John's physician, had told him "to take it easy." He was asked if the over-exertion of John in performing the "sacking" work produced the heart attack and his death, and he replied "It is most probable that the work caused his heart attack." Again he said "It most likely did."
(Hn 3) This evidence, and other uncited supporting testimony in this record, brings this case, we think, within the above-quoted rule — at least there was ample evidence to support the findings of the lower tribunals to that effect.
Affirmed.
Hall, Holmes, Ethridge and Gillespie, JJ., concuring.