Kelley v. Enid Terminal Elevators
372 P.2d 589
Okla.
1962
Check Treatment

*1 Petitioner, KELLEY, M. Zola ELEVATORS, United

ENID TERMINAL Guaranty Company Fidelity States Court, Respondents. The State

No. 39307.

Supreme of Oklahoma.

June Enid, Oklahoma, Pope, L. for

Dennis petitioner. McCaleb, by

Fenton, Fenton, Smith & City, Q. McCaleb, Mac Oklahoma B. John Williamson, Atty. Gen., respondents. *2 590 good part morning a several tor

IRWIN, Justice. times, get the and that could never denied The State they finally had going, tractor and that against a review seeks and claimant award pull tractor, the deceas- to the and that its employer, and Elevators, Enid Terminal ed, a himself, tractor cranked on the Fidelity carrier, United States insurance times. considerable number of called Company, hereinafter Guaranty and right, Mrs. Now, all “(By Pope) Mr. respondents. Kelley, make your did husband January that on evidence discloses The hour you during the noon statements to Kelley, hereinafter 18, 1960, Douglas Lee how 18, 1960, to January pertaining place of employee, at his arrived called time, how he he at the was feeling consisted his work work and during morning? felt the a necessary use loading grain. was It re- will “MR. We UNDERWOOD: load in which to moving tractor in cars objection. new our em- a fellow grain, employee, with and Em- ployee, attempted the tractor. to start “THE COURT: Sustained. in ployee five revolutions made four or excep- “MR. : I like an POPE would The tem- to crank the tractor. attempting tion, proof. and make an offer of these degrees and perature was seventeen your offer. “THE Make COURT: Their tractor. start the men were unable to POPE: If the witness “MR. ended at attempts the tractor to start question, she allowed to answer that the work on proximately After 8:10 A.M. deceased, after testify would pulling on a tractor, employee assisted having finished his meal noon on position to be place boxcars cable lay eighteenth, went in down and —sat He went home loaded unloaded. divan, looking at —on the and was He returned at noon. lunch twelve newspapers; some in the course and P.M., unload- and assisted in work at One of events commented to her that he had of this wheat. Part filled with ing a boxcar gas what a or water seemed to be use of a mechanical shov- work included was pocket heart which around his el, went he Pie then guided. which pain a in his causing great deal of elevator. scale room on hand lift chest; during had that and that he had high approximately feet room This experiencing morning; and he was by a fellow He was found elevator. the statement feeling at the time had suffered a heart attack employee. He during hour.” was made the noon doctor, by a called and was dead when judge’s argued that the trial It is first at He employee, arrived. died fellow of, consider, this exclusion or refusal day. approximately P.M. 1:30 Respondents cite was error. evidence employee’s claimant, trial, During Mixon, Okl., Terry Motor v.Co. employ widow, testify that when offered to is stated: wherein it hurt, his chest and ee home he stated came employee who “The widow of died tired, exhausted, or from the he had become injuries the result received this operation The nature of of the tractor. incompetent testify job as to fol proffered reflected evidence is told her as to how what the deceased excerpt record: lowing from the injured and the circumstances he your “THE COURT: Make offer. under surrounding accident Section 385, O.S.1951, testimony such please, Your “MR. POPE: If Honor objectionable because is hear- further at time would make an this offer of say.” proof that stated deceased to his wife, Rigdon January correct rule is announced the lunch hour on Beerman, Okl., that he had Bruen Co. cranked on a trac- & Oil

59i all involving court discusses this circumstances 169. In that case alleged claimant, after accident was afforded widow testimony offered re- we stated: or the exclusion this her husband. Therein death of it, judge fusal the trial consider set out have testimony that we “The *3 prejudicial. not Oil State Shell Co. v. between relative to the conversation Comm., Okl., 279 P.2d 316. following his employee and claimant admis- power house is from the return trial Claimant next contends the that gestae. Collins- sible as law, erred, tribunal a matter in its of Richardson, Okl., v. Dietz-Morris Co. conclusion wherein it found: Gaylor, 159; v. Huffman 307 P.2d “That the death of herein decedent v. Okl., Huffman In 267 P.2d 564. per- did not result from accidental Gaylor, supra, it is stated: sonal arising “ out of the course admissibility question of the ‘The employment, unusually of his since no part of the of as a heavy perform- work or strenuotis facts the largely determined is ed on accident alleged the date the of case, and should of circumstances each which precipitated could have caused or the deter- to be left great measure the heart attack which resulted the court.’ mination trial of death claimant.” (Emphasis the occurred “Testimony relative to what added.) power employee’s going to prior to hearsay. If we rejected as properly correctly house understand' claimant’s contention it is that the trial tribunal con- under argued that also “It cluded, law, aas matter recovery that 3, 385, subd. 12 provisions of O.S.1951 § could not be had in instant case “since spouse of em- surviving claimant as unusually no heavy or strenuous work was testify. In incompetent to ployee was performed on the alleged date of the ac- petitioners argument making this cident which precipi- could have or caused language added overlooked parently tated the heart attack.” urges Claimant We by a amendment. statute 1953 said that necessary prove was not that 1953, as amended quote the statute decedent per- engaged had been in or had there- added language emphasizing heavy formed unusually work strenuous by the amendment: on the date of the accident to be entitled “ persons following ‘The shall be compensation; if heart attack testify: incompetent arising was a injury result of an accidental “ wife, against Husband or for or ‘3. out employment, the course of other, concerning except transac each then, law, as a matter of claimant would agent which acted as the tions one compensation. entitled other, or in an grovoing action Company Hur The case of Ben Coal v. injuries personal to either out of Orum, Okl., 919, 366 P.2d a claim involved parties spouse, joint are or when compensation by reason a heart at- action; joint interest in the and have tack we held: permitted case shall either be in no but testify any concerning communica “Disability attributable ato condition to the other made one tion precipitated by of the heart caused or marriage, whether called while arising antecedent strain exertion subsisted, or afterwards.’ * * *" relation out of and in course of hazardous

employment constitutes an accidental meaning injury within the of Work- error in the action find no reversible We Compensation Act men’s and is com- A full and trial commissioner. seq.” pensable. 1 et injury 85 O.S.1951 the cause of complete hearing § 592 Okl., pensation Simons, disability, 331 for a like Safeway Stores v.

In County disability, compensable v. other unless 934, we Choctaw P.2d cited 465; Liber it arises out of and in the 16, course Bateman, 252 P.2d Okl. 493; employment Okl., P.2d See Coca- Guinn, concerned. Ada ty v. Glass Co. Okl., Snead, Wheeler, Cola Bottling Co. v. Acme Material Co. v. Cole Egg Co. and Brentwood man, and said: Okl., 298 P.2d compensation Whether denied we held cases “In the above in the instant because the claimant action consist- injury by a workman received engaged unusually was not heavy or an accidental ing of a strain constitutes unusually caused activity strenuous which *4 em- injury while where occurred the heart attack or dis because the heart usual work in the ployee his doing was ability did not result from an accidental perform- in the ordinary manner and injury of out in the arising of and course un- nothing though ance such work of employment is an were uncertain. If award happened cause usual occurred or denied because the claimant not en strain.” gaged unusually ac heavy or strenuous tivity, appealed be the order from should As- Cooperative of The case Farmers appealed vacated. Inasmuch the order Madden, Okl., sociation v. from specifically of that death states “the argued disability it was heart and involved a decedent herein an ac did not result from physical no that there was evidence personal injury, arising cidental of and out or activity unaccustomed which was unusual employment, in the no course his since State by the claimant, finding to the and unusually heavy or strenuous work sus- claimant had Industrial Court * * * performed have which could erroneous injury was accidental tained an attack”, precipitated caused or the heart sustaining contrary In to law. and are we constrained to conclude that award, we said: appealed order be from should vacated. “Disability attributable to a condition concluding, In attempt so do not we compensable of the heart is if caused express opinion but as to the by antecedent strain arising out of only deny- conclude since the basis for employ and the course of hazardous uncertain, ing the award is order ment covered the Workmen’s Com pealed should vacated. from pensation Neely [Okl., Act. Young v. The denying order the award vacated supra; 111], Diehl, 353 P.2d v. Reints proceedings for further the Industrial Okl., 303 P.2d 641. or If Court. attack, happens heart under circum stances of unusual and unaccustom WILLIAMS, J., BLACKBIRD, C. V. C. labor, surrounding ed effort of such J., JACKSON, and JJ., JOHNSON condition, shown, supply when serves concur. proof supporting as to the occurrence ” * * * of a heart attack. BERRY, specially. J., concurring apparent disability It is WELCH, HALLEY, JJ., DAVISON and required prove claimant not case a dissent. disability unusually is the result that the heavy unusually activity strenuous before BERRY, (specially concurring). compensation. Justice being entitled to On employee that an While I am in hand, the fact sus full accord other with the con- disability majority, clusion reached a heart the course tains wish to my employment necessarily does add own not observations on some of of his presented employee issues mean that is entitled com- the cause under review. tnbutable to the surviv- work-connected strain ex petitioner was The fact that Bryson, Black, did ertion. employee Sivalls & Inc. v. spouse the deceased ing Coley, Okl., 1017; incom- her 367 P.2d Farmers render Co operate to of itself operative proceeding. Association in the et al. v. et Madden petent as a witness al., 3; Bruen Rigdon & P.2d 741. subdiv. O.S.1961 § Okl., 346 al., et Beerman Oil Co. et al. v. concerning testimony Her day of death his on the actions

decedent’s of the cause upon the light

tends shed De- clearly admissible.

fatality and petitioner on statements, made

cedent’s physical efforts date, relate to upon the bearing have

activities do admissible They also BOREN, Juno cause death. Malone Executrix Boren, Deceased, Estate of Dale duty ascer- gestae. if Error, Plaintiff in came with- taining whether such judge. upon trial rested *5 BEACON COMPANY, LIFE INSURANCE part of as a of statements Admissibility City, Oklahoma, of Oklahoma facts largely controlled Defendant in Error. case, each and circumstances No. 39542. measure, left should, great matter Supreme trial court. to the determination of Court of Oklahoma. P.2d 564. Gaylor, Huffman v. June petitioner’s whether here It is not clear rejected due testimony was proffered com- not a she was belief

erroneous statements

petent witness, or because lie deemed were

sought to be introduced I gestae rule.

beyond of the res limits the Industrial therefore,

am, convinced determine, instructed to should be claim, whether or rehearing decedent’s found, receive be so

gestae, and if

them evidence. agree compensability cases depend

this sort does not on the factum

of a or “unusual” “severe” strain exertion. controlling inquiry issue under competent

whether medical evidence dis- causally

closes that death related

the work decedent in done the course employment. While not an indis-

pensable in the chain of element

proof of an unusual or ef- unaccustomed

fort of highly labor is nonetheless rele-

vant, because it serves to aid in demon-

strating that be it dis-

abling fatal, did not result from some cause,

spontaneous or natural but was at-