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SHELBY MUTUAL CASUALTY COMPANY et al. v. HUFF, as next friend.
34370.
Workmen's compensation; from DeKalb Superior Court-- Judge Vaughn. September 25, 1952.
TOWNSEND, J.
Where there is no evidence as to the cause of death of an employee who collapses and almost immediately dies while engaged in the course of his normal and daily employment, there is nothing upon which a finding of fact that such employee sustained an "accident arising out of" his employment may be predicated; and an award in favor of the dependent claimant of such an employee is unauthorized.
This is a workmen's compensation case representing an appeal from an award in favor of Mrs. Vassie L. Huff as next friend, for the use of a minor child of the deceased employee, Clyde Huff. The undisputed evidence was: that Huff was an electrical repairman; that he went to work about noon on the date of his death; that during the afternoon he climbed a 15-foot ladder to the roof of the building two or three times; that the last time was about 15 minutes before his death; that at that time he was not breathing heavily and was not apparently ill; that he entered the building and stood in a depression back of a counter where he was engaged in using a star drill and hammer; that this was around 4:30 p.m., and an employee in the room heard him gasping for breath and found him leaning against the wall; that he was still alive when the employee reached him but died within a few minutes thereafter; and that he was in normal health that day so far as other employees knew. A medical witness testified in substance: that Huff had visited him on March 14 and 18 before his death on April 4, 1949, and complained of pain in his chest or abdomen; that he did not locate the cause and referred him to a heart specialist for an electrocardiogram, an accepted medical device for determining whether a man has heart trouble; that the findings were normal, and the doctor "couldn't make [diagnose] any heart trouble" and dismissed this from his mind as a cause of the pain; that it could have been from stomach, gall bladder, or other causes; that "a man who has attained the age of 55 years could suffer from coronary occlusion as the result of climbing a ladder of approximately 12 to 15 feet in height several times during a period of eight hours"; that "any great physical exertion on the part of a man who has attained the age of fifty-one years might possibly cause the condition commonly known as coronary occlusion"; and that he could not say as to the claimant, and did not know the cause of his death. A death certificate tendered by counsel for the claimant was properly rejected on proof that the coroner signing it did not have jurisdiction to do so.
The employer and insurance carrier appealed from the granting of the award, and the decision of the hearing director was affirmed by the full board and the judge of the Superior Court of DeKalb County. This latter judgment is assigned as error.
(After stating the foregoing facts.) In a workmen's compensation proceeding the burden is upon the claimant to establish by evidence that the employee has sustained an accidental injury such as is contemplated by the act. American Mutual Liability Co. v. Harden, 64 Ga. App. 593 (13 S. E. 2d, 685). "It must result from this that a finding of fact made by the commission can not be based on mere conjecture any more than can a finding of fact made by a court." Lathem v. Hart- ford Accident & Indemnity Co., 60 Ga. App. 523, 527 (3 S. E. 2d, 916).
Where it is shown that the cause of death is cerebral hemorrhage, "unless and until some method is developed to ascertain with some degree of certainty that such an attack is not contributed to by exertion, we think that knowledge from human experience, including medical caution against exertion in such cases and the admitted opinion of experts that exertion might contribute to such an attack, authorized the finding in this case, on the weight of reasonable probabilities, that the amount of exertion in this case contributed to the cerebral hemorrhage which caused the deceased's death." Hartford Accident & Indemnity Co. v. Waters, 87 Ga. App. 117 (73 S. E. 2d, 70).
Where it is shown that the cause of death is cerebral hemorrhage or some other disease with which exertion on the part of the employee as shown by the evidence may be expected to concur in precipitating an attack, and where such employee, so suffering, exerts himself in the course of his employment, these facts are sufficient under the above ruling to authorize an award in the claimant's favor. Both the disease and the exertion must be shown, however. Here there is no evidence whatever as to the cause of death, nor even evidence from which an inference can legitimately be drawn that the deceased was suffering from heart disease at the time--in view of the fact that less than three weeks previously the deceased was examined for heart trouble and the findings were negative.
The claimant here is confronted by the fact that there is no evidence in the record as to the cause of death. We are unable to find any authority for the proposition that mere proof of exertion on the part of the employee could be held to contribute to a death the cause of which is not stated, since exertion might contribute to the fatal attack in some diseases but not in others. Perhaps the most nearly comparable case is that of Lumbermen's Mutual Casualty Co. v. Bridges, 81 Ga. App. 395 (58 S. E. 2d, 849). There the deceased had complained of pains in his chest and also of heartburn, the medical witness testified that if a man had complained of heartburn and pain in the chest that would "render a coronary thrombosis more likely," and that this "made the final diagnosis as stoppage of the coronary arteries pretty decisive." Nothing appears from the record here, however, except a medical opinion that "a man could suffer from coronary occlusion as the result of climbing a ladder"; but the physician did not form an opinion as to whether the employee did suffer such an attack from climbing a ladder, and further stated that he was unable to state an opinion as to the cause of death. This further testimony that he "surmised" a coronary occlusion to be the cause of death because he "understood that the doctor at Grady Hospital found out it was an occlusion" was of course hearsay evidence, to which proper objection was interposed.
It follows, therefore, that where there is no evidence, opinion or otherwise, as to the cause of death, an inference cannot legitimately be raised that the normal exertion of the employee, not shown to be unusual or severe, in the course of his daily employment contributed to aggravate another and unspecified disease so as to contribute to the death of such employee.
The judge of the superior court erred in affirming the award of the Board of Workmen's Compensation.
Judgment reversed. Gardner, P.J., and Carlisle, J., concur.
Herschel Maddox, contra.
J. Winston Huff, Powell, Goldstein, Fraser & Murphy, for plaintiff in error.
DECIDED JANUARY 27, 1953.
Saturday May 23 04:24 EDT


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