*1 in the dis- if has erred the trial court
position child. made of it has the matter
We to leave are constrained judge,
in the the district hands of exer-
with full that he will confidence authority reopen the
cise cause in his further consideration wel-
judgment is for the child’s
fare.” say something of the sort here would permit
:and trial court a free hand in
correcting majority error. The its own
n сoncluding otherwise, I dissent. P.2d TEAL, Plaintiff-Appellee,
Ada Cass AMERICA, a
POTASH COMPANY OF Defendant-Appellant.
Corporation,
No. 5940.
Supreme Mexico. New Court 5, 1956.
Jan.
Rehearing 1956. Denied Feb. naturally was called to exercise supervision employes en-
some over other enjoyed the gaged in ball mill work. He ordinary helper of a aid assist operation. labor of the *2 Carlsbad, Neal, Neal, for & Neumann point, may into At this it be well to enter appellant. explanation just some of what ball mill a Carlsbad, appellee. May, Leonard for T. operation. and the The ball nature of its large mills are into which metal containers SADLER, Justice. by conveyor fed bins ore is a from ore belt below, appellant be- The as defendant an ball., directly slightly behind and above the Court, complains judgment of a fore bins, Naturally, mills. comes into the ore plaintiff it the against in favor of the varying in when conditions and at times in dependent Teal widow R. Jesse they are no mines the getting- ore from the prosecuted provisions under the action up insides bins cake on their and it is neces- Compensation Mexico New Workmen’s sary to beat get them on the outside to the seq., Aсt, Comp. for 1953 59-10-1 et the § ore mesh loose and feed ball mill. the of her husband found mine, goes the ore When comes from the by him in the have been course suffered into the into drying mill where is ground by the com- employment defendant mesh, quarter goes and from inch there jury tried was before pany. case in conveyor storage directly the belt to bin County, action where the was Chaves Goldsmith, the behind David ball mills. employed the brought, though decedent Refinery Engineer defendant, gave Eddy County, in New met his death description operation somewhat lucid of the Mexico. attorney, questioning under defendant’s years age at time The decedent follows: death, having in his continued “Q. you what hand Exhibit P-3 age, and was retirement known past potash will ask to state operator in what is? the ore ball mill aas defendant, These bins here located about A. four are ore refinery of Eddy County, bins that hold the ore in back of the New out of Carlsbad miles mill, conveyor em- ball and this up had been defendant’s comes He Mexico. top years. here over the оf the For some time ore bins to for about ploy charge he had been deliver ore. his death preceding mills, “Q. conveyor This brings four ball Nos. 1 operation of
of the potash Yes, into position the ore bins? being thus through sir. into ball mills. anew drop and start its flow then potash will “Q. And the shaking means of drops No other or different mill? A. the ball down into caked ore from interior sides of loose bin. the ore into improvised. bins been the ball seems “Q. happens when What receiving enough operator is not mill heavy hot. The work was . ore, that? A. reason for what is the helper and hard and decedent and his were in the mine that may trouble There required operate nar- on a catwalk in a shaft, coming into the ore not space row of two feet between the side in the down be a break might building walls and the bins. The happens mill, ore when drying building galvanized was made of tin and naturally out the center feeds the room of the same material. It had a more or less leaves ore ore bin and heat, tendency to receive store up side оf the bin. caked on the little circulation of air near roof of they “Q. happens are What when compelled building where has receiving ore and ore work, being elevated bins some 25 feet the center? A. through drained down ground. above edges They have beat around dust, heat, poor Aside from circula- to start the flow at the bottom the bin *3 cramped quarters under tion and of ore.” helper labored, decedent his further shifts and worked three The defendant particular day arose this discomfort from his shift at decedent went to work with the experimental process fact that a new the death, p. day August of m. on the 3:00 in ball mill being tested unit No. 4. helper quan- brought had 1954. His spread use caused certain fumes Its necessary op- tity which was in the of lead working quarters their throughout to such p. About m. the ball mills. 4:00 eration of they induced a stinging, extent day large steel ore stor- this ore from the of in the smarting, sensation nostrils of the stopped feeding through to the ball age bins well a and as noticeable workmen shortness mills, production in the to failure due n experimentation While of breath. with residue ore now re- mines. This left a underway had been process this new the interior sides of to mesh caked duced prior day, time 4 for some this mill No. Accordingly, the decedent storage bins. the seemingly unknown reason on this for beating helper the sides of and his started operation fumes from particular the the heavy sledge storage with ham- bines a more present degree noticeable were purpose in provided order to mers for previous day. than on of the bins get ore loose from the sides begun journey had to Carlsbad with conditions that his. under such So it was and body. helper beating worked decedent and his the chief claim p. until Since of error m. 7:00 arises on
the bins from about 4:00
challenge
sufficiency
lunch around a
p. m.,
slight break for
with a
evidence to-
returned,
m.,
they
aided
sustain the verdict
we
p.
after which
5 :00
re-
by the
painstaking
sent over
viewed it with
two
workmen
care and
additional
must
the stubborn- give
judgment
aid because of
it as our considered
shift boss to
tenacity
requirement
the ore re-
with which
meets the
of substantiality.
ness
sides,
spite
against the
are not unmindful
mained caked
We
that the exact and
established,
during
precise
pounding.
It was
cause of death
all
their
is not
pause
degree
proof
lunch that decedent confid-
slight
for
with
desirable. But
got
“had
too hot
helper that he
occurring
ed to his
with the nearness it did to.
place
there,”
had
indicating
the extreme strain and exhaustion decedent
conditions,
beating
had
beating
been
the bins.
just undergone, plus
p.
uninterruptedly from 4:00 m.
continued
labored,
under which
all
contribute to
p.
break
with
short
to 7:00
m.
make it
permissible inference,,
a matter of
just mentioned.
lunch
opinion,
in our
whether the strain and ex-
haustion
proximately
were not a
contribut-
testimony
record or
was no further
There
ing
and,,
cause of the workman’s death
p.
by decedent from around 7:00 m.
of labor
hence, compensible under our Workmen’s.
around
or 9 :00
8:00
o’clock
until somewhere
Compensation Act.
pick up
was seen to
p.
when he
m.
course, the Act
Of
does not
give one
make-
of the bins a
sledge hammer
employer
file
an insurer of
Shortly
this,
employee-
it.
after
poundings with
few
against
injury
occurring
or death
getting
during-
seen alive
drink
he was last
employment.
his hours
Martin
refrigerated water
v. White
fountain
water
Co.,
floor,
115;
Pine Lumber
N.M.
main
near which
P.
down on
Co.,
m.,
Mining
Aranbula v. Banner
p.
he was found in
a state
N.M.
around 9:00
253, 161
And
unconscious at
P.2d 867.
collapse and
burden is.
water
always
plaintiff
slightly
his head
under
establish that
fountain
it.
the-
promptly
employee
sustained an
foreman
accidental
The shift
notified
in-
employment
respiration
the course of his
and arising-
and artificial
resorted to
*4
immediately.
Grossman,
Since there was no
out of it. Clower
doctor at
v.
55 N.M.
546,
353;
refinery,
Carlsbad,
Campbell
one was called from
237 P.2d
v. Schwers
away,
Inc.,
Campbell,
385,
miles
had
59 N.M.
some 20
arrived
413 cases, quoted approvingly we from one of hiatus of order, brief rapid such a events in them, exertion, as follows: followed time between Co., Hill Thomas S. Gassner water “In v. refrigеrated
quenching of thirst 217, 382, 384, Pa.Super. 124 188 A. death, experi- then, natural and, sudden likely court said: suggests there is a mankind ence of “ ordinary the strain and connection between course of causal ‘Death hand, exhaustion, conse- employment, on the one from strain resulting latter, exertion, the other. The quent death on the heart caused unusual suspicion, course, mere may meaning not rest on an accident within the * * Campbell guess. compensation v. Schwers- or workmen’s statutes. surmise may hand, as a supra. But it arise Campbell, occurring the other death On duties, inference from circum- legitimate discharge while in the of usual fair and Grossman, exception- Clower v. in a normal manner without in evidence. stances effort, supra. al is insufficient establish a ’ ” “mishap” happening.” “fortuitous or fact, the decedent’s If, matter of as a expert testimony enough, True over-exertion, exhaustion arose from death go did not far as the medical witnesses so strain, working under the conditions attack was the affirm that a heart cause of whiсh, least, say was one shown and, likely so, probably that it process, testing of a new from the fumes strain resulted from and exhaustion things, among shortness of other inducing experienced, just had which decedent jury would have no breath, think we testimony. The most outlined in the such inferring it resulted from difficulty willing say that the witnesses arising out of and in the cardiac collapse and death of a man sudden under employment within definitions of course who, shown until the conditions that time injury approved by this accidental enjoyed good health and had never be- Dysart, 107, 42 v. N.M. Christensen Court. coronary experienced trouble, vascular fore 1; v. Lee Moor Stevenson Cont P.2d be attributed to such might well 354, Co., 342; 45 N.M. 115 P.2d racting These then. witnesses were attack frank Co., Pub. 47 N.M. Mexico New v. Webb however, agree, that death enough to under 1002; 333, 148 A.L.R. Hatha P.2d 279, 141 could be circumstances attributed to such Police, State Mexico N.M. causes, might New way v. follow when other cited, activity In the case first whatever. in no engaged 690. P.2d Dysart, supra testimony expert above, ran Christensen So next jury privileged which thе citing many witnesses 4], after P.2d N.M. [42 *5 414 attack, produces strain a weight only, as of which heart
accept, reject, give such injury or death accidental. Hatha- is entitled to have. it deemed the same Jami way Police, supra. 34, 593; New Mexico State Shelton, 289 v. 35 N.M. P. son v. happens ordinary day Co., But if it that the so to Furniture 47 Broome N.M. Elsea v. hard, day performance heavy involves la- 356, 572. But the medical testi 143 P.2d bor, pushes constantly, and one oneself to mony ignored altogether and the fac were point precipitating exhaustion by a present drawing determined issue tual attack, heart it is not accidental. experi reservoir of human upon the vast consistency would be neither jurors, to the as well as There nor common to ence contrary all, say logic in such views. men, After indulging can all who employed, physical is the effort conjecture and surmise in strain- saying in mere point exhaustion, ing of oneself to of a attack due died this decedent case, produces Indeed, either the “unintend- exhaustion? would strain and ed,” “unexpected,” and the resolving probabilities “unlooked factual jury not be enabling for” result the courts to character- unusual strain on dece inferring injury ize the or death as accidental. The heart, helped by difficulty along dent’s physical producing exertion the strain on by testing breathing fumes from caused and, the heart is the same either case process, a heart attack and new invoked obviously, exerting workman known jury think the had substantial death. We expected followed, the result which support verdict so reached. evidence to would never have so exerted himself. sight lose of the think is to realities We Hathaway Police, New Mexico v. State su- injury upon or death from strain hold pra; Godsman v. Grumman Engi- Aircraft by unusual exertion in the heart caused Corp., App.Div. 945, neering 268 51 N.Y.S. emergent situation, per- meeting an outside 368; Narragansett Barker 2d v. Racing ordinary duties of of the one’s formance 489, Ass’n, 495, 23; 16 65 R.I. A.2d 17 A.2d compensable, employment, accidental and is Murphy Bros., Pa.Super. 484, v. Toland deny character accidental to a like See, also, A.2d 156. Erholtz v. Balkan physical or death where Minn., Co., 863; Min. 70 N.W.2d Gatto v. part a concomitant producing Co., Contracting Plaster Newark A.2d performance of the duties of anoth- regular 867, 307. 18 N.J.Misc. elucidate, employment. To aif er’s work- involving physi- is minor In order to make job one out a man case whose calling day, verdict a directed while on the for cal exertion defendant here, employer compelled, upon emergent job called sudden contrary rule, situation, physical governing unusual labor weigh to exert the evi- McGHEE, dissents. J., the ver- against dence and inferences draw authority, dict, which under a wealth McGHEE, (dissenting). cases, Justice decided
illustrated
numerous
majority opinion
of the verdict.
should
resolved in favor
convinced the
am
Hotels, 45
Snodgrass
Tourist
v. Turner
and is based
erroneous
erroneous rea-
775;
Herzstein,
N.M.
109 P.2d
Giles
soning.
thorough
I made
examination
160;
Read,
Madsen v.
transcript
49 N.M.
156 P.2d
attach hereto as an
*6
We employment; unusual the to (3) and merit in In- the and do not find of them. say Dr.
deed, mentioned, most Salmon would the was that the ex- as to the first ertion Teal and the disposition made us of first claim conditions the of work could have discussed, namely, in a sufficiency of resulted strain which error of might precipitate verdict, bodily a change the and the evidence to sustain resolves result on And, his death —this the basis al- against defendant. as to those re- there was ready bodily some instructions, underlying condition lating the when we view to light prior which had not come to a no doubt remains but that to that them as whole time. When thе doctor was adequately charged refer- asked ex- jury the with possibilities clude other just likely submitted. ence to the issues death, he have caused would not answer plaintiff asks for an The allowance to her “Yes” or “No” that the exertion and cir- attorneys amount as some reasonable precipitated cumstances death, the and was attorney services of her fees for only willing say happen. it could appeal. granted will be the sum She majority opinion pays lip The service to on this account. $750 former declarations of this court that an error, Finding judgment no the will be employer not an insurer of the life and affirmed. employees health of his under the work- It is so ordered. act; compensation that
men’s the burden employee establish an COMPTON, J., plaintiff to and the sus- C. and on LUJAN KIKER, accidental in the course JJ., concur. tained error, its employment; study testimony that shows arising out of the of the think, occurring question, from heart while without that most the strain unwitnessed, jury employee discharge go is in the of his usu- had to un- on was duties, explained during in a manner and without death which
al normal occurred effort, working hours exceptional premises is insufficient establish and on the and, mishap happening; employer; fortuitous that circumstance the em- ployee complained may not being rest overheated as connection finally, causal major- guess. employ- The result of suspicion, exertions normal to surmise ment thereto, principles all these and under ignores conditions normal ity opinion then first, exception essence, jury single presence declares, that the experience its natural in one ball mills may of chemical fumes determine testimony (the only connection between a causal chemical that there was pine nothing death. base contained strain and exhaustion far, may ; jury medically injurious) then con- medi- Having gone so established; cal the exertion and the death cause death was not clude since expert testimony possibly the death was the result of a was that the ex- are connected arising produced of and in the course ertion under heart attack out such circumstances employment within definitions of death. acci- injury. dental authority overwhelming weight of opinion does mention majority *7 compensation denies in similar cases unwilling say was witness medical the competent is no basis there evidence the have death could that resulted than more a causal connection between to establish circumstances, such under from Indeed, I employment can find and death. have resulted could from that also upon contradictory authority no similar causes. The fact many other many, facts, in such as New even states York and only can experts, we conclude whom the the Massachusetts where claimant has experience vastly more common statutory presumption providing his a favor jurors, than the did not matters draw these employee that where an has been killed or upon which inference inference the the mentally physically testify, is unable to desire does dеter them majority in the absence of substantial evidence to say Their solution is that the jury whit. contrary, the claim comes the within the completely ignore the may medical testi- compensation provisions law, of the mony! injury given sufficient notice of the me a was analysis mere and It seems of the opinion of the structure sufficient to the show that or death was not occasioned report show- a doctor’s City offered The employee to the by the wilful intention of heart, ing of decedent’s enlargement injure or kill himself. profound degree and evi- arteriosclerosis of a few examination rather detailed A fibrosis, dence of of which were dis- old all is in.order. the authorities autopsy. closed the The doctor conclud- County Francisco of San City In and ed cause of was acute occlusive 1953, Commission, Accident
Industrial coronary artery, right thrombosis of the 81, 455, an award of 256 P.2d Cal.App.2d cal- long-standing, was the result of deceased widow of a death benefits cific coronary arteriosclerosis vessеls deceased, annulled. employee was type complication and that would employed Murdock, 64, aged was occur day, regardless moment of the was, prior to his He Park Commission. physical The re- of the extent of exercise. January seizure, health. On good
fatal port, copies autop- based coroner’s other mem- 1952, work with went to he sy report, inquest, verdict of the coroner’s clean several trees his crew to and on bers a written statement of the dece- partner, in his working down section of excluded blown dent’s was branches and objection. evidence the widow’s None heavy preceding storm park by a report seizure, matters on which the was Murdock before his night. Just based went into evidence. sawing log been man had another and be noted that in Parenthetically, should two- in diameter some ten inches subject matter testified man, California, The foreman saw. cross-cut experts knowledge of heavy and logs was exclusive sawing of within expert subject, evi green. The particular log was in a scientific trained However, California work which essential. sawing was the heaviest dence a medi expert evidence engaged recognizes in their duties and called crew evidence of with other rush taken possibility, there was no straining, but cal may sufficient to be help. non-expert character plenty of the crew One probability. of medical inference support who turned saw foreman to the called Indemnity In Co. v. He Fund collapsed. un- Fireman’s See that Murdock Commission, 1949, 93 Cal. turning blue Accident conscious, ears were dustrial Therefore, 1033. 208 P.2d App.2d get breath. tried sighed and he that California’s burden may reasoned taken to a him crew covered than that of higher New no proof is and was dead on of an ambulance hospital in *8 opinions expressed in our testimony rep- Mexico as of summation This arrival. Co., 1943, Furniture 47 Broome case. Elsea v. widow’s entire
resented 418- However, not a matter ment. is Mor 572, 356, and Lemon P.2d
N.M. 143 knowledge, operating that 830, common 1954, 277 Co., N.M. 58 rison-Knudsen partner on the with a saiv cross-cut that noted also be It should 542. P.2d a strenuous end is labor such other New rule to the California, opposed heart attack. bring as to on type State Mexico, Hathaway Mexico New fatal v.. supplied.] 690, only [Emphasis 747, Police, 1953, P.2d 57 N.M. is sufficient strain or exertion
usual
report
not in-
autopsy
was
“Since
is
award where'causation
which to base an
that
troduced,
no' evidence
there was
In
Liberty
Co. v.
Ins.
established.
Mut.
already had a
ail-
employee
1946,
Commission,
73 Cal.
dustrial Accident
ment,
Co'mmission
555,
App.2d
less common, happened march of judicial, by the inexorable could find a rea- acci- knowledge that duties as disease. would have been such by probability, caused, aggravated, employee, dental if the a miscalcula- sonable inadvertently strength, to the attack. tion of his or contributed own accelerated * * * * * * hastened his own death the final caused breakdown. cited have been cases "Numerous “ require- ‘As the unusual-exertion of no case we know bu't appellee, *10 ment becomes more and more weakened that a heart has held this Court by exceptions the interpretations, and the of compensable in absence attack keeping burden of class of cases between connection causal proof of proper squarely within bounds falls employee’s the attack the expert the shoulders medical wit- of work. expert ness and trier of fact. Compen- Workmen’s “In 1 Larson’s Plainly, the heart cases will continue to 38.83, Law, the rule Section sation long be troublesome as as some reach is, part, in to causal connection appellate courts on a record be an must still ‘There follows: testimony which the medical is em- result, must unexpected and there still phatically certain effort and exer- capa- an exertion —some be exertion — nothing tion have whatever do with collapse. This medically causing ble coronary thrombosis, while most such granted. for no be taken by means can opposite thеory.’ cases are based on the employee If heart failure overtakes proof “We hold was no merely a bus waiting for he is while the commission that before Howell’s elevator, simply no or an probably attack was (cid:127)heart caused provide an accidental all strain (cid:127) work, or that his probably ag- activity. employment The result accelerated gravated, or contributed may progress of the disease natural The finding of the thereto. commis- during bring fatal climax to its based was not sion substantial evi- hours, employee’s working The claimant failed dence. to meet effort, involves activity at the time no proof the burden as to causal con- support medical- cannot or effort nection.” connection, rightly it can a causal ly & Casualty the outcome neither Houston Fire was acci- In
said Ins. Co. Biber, causally Tex.Civ.App.1940, nor related to the em- 146 dental S.W.2d simply ployment. proof was not accidental there was similar failure of Biber, died as a causal connection. whо over the seed from the catwalk and insert- em- result of hemorrhage, ing a cerebral pile thermometers in the of cotton ployed company temperature as a foreman oil seed. Fifteen thirty cotton checks charge house, oblong day. a cotton seed were made a building high- On The high. question with walls ten feet temperature point ranged est above a the roof was 51 feet between degrees in the early afternoon; shade in the building concrete of frame floor. the sun was brightly. corrugated shining temperature construction with iron roof in the undoubtedly seed storage walls and was used of reserve house was higher for much corrugated al- cotton seed. of the because of the iron 'On date construction.
leged nine-tenth’s The cotton seed tests showed temperatures the seed house was about full, wall, ranging from 95 coming against degrees. seed The hu- spaces. midity except high. for There was a two cleared building through
tunnel the center of the A witness testified he saw Biber come therе was catwalk the middle house, from the direction of the seed stum- below the building about eleven feet ble and fall at the corner of the office build- peak From the catwalk roof. ing. gasping breath, Biber was for wet step seed. could the stored cotton off onto perspiration and unable to talk. He end was a shed at the west There passed out at the comer of the office build- house, located under which scales were seed ing. Another witness saw Biber the same counter there. and there was desk and minutes; afternoon ten or fifteen Biber *11 company office was located about 75 The doing any was not strenuous of any of west end the seed house. feet from the kind at the time. While he and Biber were supposed supervise the un- talking put to Biber Biber hand his head and seed and said, my cotton “Oh, of trucks filled loading head!” Biber died a of the seed with- the distribution or so look after later. checking its condition building,
in the The put claimant forth certain circum- temperature. He excess time for time to stances to indicate Biber had him- exerted supervision. men under had several prior self to his fall an unusual manner: even-tempered, good taken temperature the seed was Biber workman of of an active man. special energetic thermometer at the end He had been with a rods. The thermom- seen on the catwalk several times. Fie was pipes or jointed metal profusely picked seed when he was pushed perspiring into cotton eters were feet, perspira- wet with up from holes in the and his clothes were either 20 depth of by walking brought out building or tion when home. There of walls 122' ’ conjecture of seed in' resort surmise that unusual amount cotton
was an undergone Biber had muscülar exertion clothing. (cid:127) was, therefore, shortly prior no di- to the occurrence of the there this case In * ** exertion, hemorrhage. hut the physical fact evidence rect premises Biber was about the all testified that witnesses medical employer, in itself from a is not sufficient to probably did result have could physicаl necessary establish brought causal relation- hemorrhage cerebral ” * * * ship. questions as- hypothetical under opinion Also instructive in go and down is the would suming that Biber seed; statement: height test cotton steps 40 feet “ presumption ‘A of fact can not'rest cotton seed made 23 tests were - upon presumed, a fact in other day, called building that which tests in the n words, one presumption can not be go the cotton seed out over for Biber upon based presumption, another nor the thermometer. to insert inference fact other in- said: The court ¡ 247, ferences.’ 17 Sec. 57. Tex.Jur. testimony makes it “The medical n » . * . * * possible several there are clear n The detailing pertinent more may have caused situations fact jurisdictions cases from other could be of hemorrhage suffered cerebral only effect, cumulative and I content a'm: others, pos- Among Biber. merely remaining to cite ones. Finch v. may have hemorrhage sibility that the Evins Co., 1949, Amusement Ga.App. 80 It of disease. solely the result been 457, 489; Stepner’s 1952, 56 Cаse, S.E.2d the result of an emo- may been 230, 227; 328 Mass. 103 N.E.2d Sandlie may have been disturbance. tional Compensa v. North Dakota Workmen’s exertion. It is of muscular the result Bureau, 1940, 449, tion 70 N.D. 295 N.W. pro- some evidence necessary that 497; Co., v. Wiggins Ackerman H. B. Sons beyond raising bative force 4941, 628, 519; 21 A.2d be introduced exclude surmise mere N.J.Misc. Ezyske Co., Waverly Dressing Fur re- possibilities, other all before 902, 1936, 218; dig- raised to the Mc one can be maining N.J.Misc. [Emphasis sup- probability. nity Cormack v. National City Bank of New plied.] 1951, York, 5, 887; 303 N.Y. 99 N.E.2d
[*] [*] [*] [*] [*] t- Hyshiver v. Hotel Laurelton, 285; App.Div. evidence of this we 283 N.Y.S. Texas “Under case Em *12 ployers can said without Young, Tex.Civ.App., believe it Ins. Ass’n do v.
423
1950,
483;
Depar
agreed
Petersen
seemed an
among
231
t
v.
view
S.W.2d
the
experts
40
Industries, 1952,
medical
who
of Labor and
testified that the
tmen
un-.
635,
usual
strain
excitement,
physical
Wash.2d , ex- and experi- cases mental which Some the above .cited are claimant had enced, precipitated no amples little or either pre-r, .where .there the or-was or immediate n by many employee, disposing exertion cause of acute; . present produced are much like the as attack disability.
them as case 'above, recognize all those detailed The essence of the in that holding case proved by the claimant. causation must be succinctly is syllabus stated -1: alone, following even an amount The.death , “Disability in ordinary course could be said to be of exertion which employment as result of strain on the strenuous exertion demanded of most exertion, heart because of unusual enough, employee, is not and that where an meaning ‘accident’ within of the to have been established caused Compensation Workmen’s Act. 1941 hemorrhage. attack or cerebral by Comp. 57-902.” § majority opinion following cites the part opinion The material in Godsman holding for the decedent
cases
suffered
v. Grumman Aircraft Engineering Corp.,
arising out of and in
course
accident
supra,
appeal
by
from an award
.
.employment: Hathaway
Mexi
v. New
State
Board,
Industrial
App
reads [268
Police, supra; Erholtz
Balkan
co State
v.
945,
Div.
claimant commis- opinion page compensation workmen’s sand. sioner of As the. bu-B plasterer collapsed report (263 states, Mexico 696) P.2d‘ There New r.eau. the..
Í2á working under claimant was and that he was ture condition while
result of a cardiac his co-workers. than severe more conditions day. There a a on warm closet plastering per- a testimony that ample medical supra, was Co., is Balkan Min. Erholtz v. heart condition manent, aggravated where the attack was another heart case was caused suffering was which claimant the cause exertion and by caused unusual a hot by in the closet doing the work by medical disability was established day. opinion quote testimony. from the be- of 70 N.W.2d: page at ginning Ass’n, Racing Narragansett
In Barker v. em- finding “A that the death of employee was supra, the the death amply by ployee his work is was caused myocarditis, by an attack acute caused by evidence. Whether sustained the and over-exertion by heat induced excessive finding sustains that the the evidence fact Such contributing as factor. something the out of exertion was evidence competent medical established compared when ordinary unusual showing the con- evidence as well other ordinary work as to so con- with overexertion and the ditions of heat ‘accident,’ as we have an de- stitute decedent. casеs, in term similar fined that supra, Bros., a heat Murphy Toland v. However, questionable. if we more temperature was ten case. The stroke testimony of accept the witnesses who suf- and the claimant degrees normal above conducted said inside painting the after fered stroke extremely muddy under conditions of small, The room. unventilated of a was short- crew terrain and syllabus in is stated point in the case handed, much resulted as follows: than would re- greater exertion be to recover com- “Right of claimant ordinarily, quired the case with- comes heat stroke rested pensation for rule which we have followed in is not theory heat stroke past employee The had many cases. predictable re- natural, probable and semiannually his fam- been checked exposure prevailing con- sult physician, Lamb, ily Dr. A.H. extraordi- ditions, constitutes but year last time before his death. about mishap visited nary and unlooked-for high temporary pres- Aside from blood suddenly claimant while work.” sure, recovered, from which he Dr. suspected experts never that there testified the Lamb cause medical Two anything wrong employee’s with working in the stroke was small heat heart. tempera- the unusual None of the men whom he had room unventilated ingredient wrong anything jury’s worked ever noticed “vast reservoir experience” human nor did wife that he know and come with a conclusion that trouble. evi- there is substantial autopsy “From it is difficult to dence industrial causation. escape employee’s conclusion probability required reason that days because of numbered sort, cases of this possibility, than rather coronary artery, occlusion of his perhaps can be no better stated than in applied. that is not the test to Spolter case of v. Four-Wheel Brake test, frequently in have said we Co., 1950, Cal.App.2d 690, Service *14 past, is whether unusual exertion 307, 310, P.2d where it is said: prior subjected which he was to his “It forgotten must not be in that collapse precipitated his death so as civil require cases the law not does to bring it about a time when it absоlute only demonstration but rea- normally. would not have occurred support sonable probability find- suffi- We believe that the evidence ing of jury. civil in cases Juries ciently sustains the commission’s con- * * * so day. are instructed every clusion that here the exertion shown This court recently occasion had precipitate employee’s did so death. point certainty out that ‘moral is not such, findings As the commis- required cases; in civil there “reason- sion must be sustained.” * ** able probability” is normally today the same Until we had rule as sufficient is a counterpart used as by stated Minnesota court in the that ’ ” “preponderance of the evidence.” Erholtz case. as our substantial evidence rule is Just just agree the facts in the cases I dis- geared preponderance to “a of the evi- and, award, support an such cussed had dence,” “preponderance so of the evidence” present case, in this been doubt evidence geared is probability” “reasonable appeal. been would have thеre But law, this probability” “reasonable cannot authority not for are what is these cases be established a combination of mere majority.
held “possibilities.” summary may be said that stand,-, hypothetical majority opinion majority opinion has taken If the as the law state, resulted exer- then compensa possibility, workmen’s hypothetical policy another tion, pos- policy is fact based tion of life and cause of accurate sibility,-that death health insurance if a workman dies or has multiplied them, attack, job. a heart added attack illness on the cross-examination) (On judgment ren- opinion the . (cid:127)Being particular day :“Q.. say on this You against both affirmed dered Yes, ? sir. hot in there A. it was law, I dissent. evidence A. . than usual? “Q. Any hotter Appendix always No, sir, about same (cid:127) Evidence of Summary of Digest and time. in the summer Witnesses, Case Plaintiff’s temperature you at the “Q. Did look (cid:127) Boatright L. ? A. day building or out inside the J. No, on the 3:00 with Teal working sir. “Was p.m. experienced there “Q. you 4:00 ore About What .shift.
o’clock working the same and “we were going through, while stopped experienced on the you the bins so we could beating condition up there (cid:127) ; Yes, It was hot sir. job bins out.” sometime? in the get the ore they were work- * * * day, hotter you beat some bins “Q. outside; in No. 4 acid ing than shift, .A. every do not? nearly nose; your did burn mill would ball got we according to whether That to whether af- attention pay eight not; ore for we-get ore or circulation eyes; no artificial fected - (cid:127) beat them. not have to we do hours or fans. of air many you get times “Q. Are there o’clock; eight Teal bins for coming 7:00 out of the about lunch ore Ate physical health A times. good few appeared to be ? A. hours ¡ thing'is sat to ran out of “Q. time. When The usual prior to that *15 where during a shift in some-- came back Teal to eat ore sometime down , , . down; “I do not Yes, ,,, sat sir. Boatright and A. bins? you ate or not . (Teal) say and “Q.- help.-¡ he' both whether You remember with., to,Mr. up you hot there.” worked too got he Teal said but he er when operator./ as ball Teal him, Mr. and mill and eight nine between Sometime beating? bin A. bit of quite a did Yes/ up to the' bins. back came Teal o’clock - sir. and then left licks or five four He hit day you after particular On this “Q. know he did not witness ,- Teal, up there with Mr.- lunch job your regular had their part of Was went. you you up with while ball he through the going ore keep the remark,- ; make did he he did yours, going way get the ore mills—no' (cid:127) ,A. Yqs, not, gotten too -hot? had. stopped again when mill through ' ' ’ n , , ,. : . sir. the bins." by beating except , “Q. said there were some You go not back “Q. he did And 4; what was time, fumes .out No. he? .there did beating bins after A. of acid nature of it? A kind eight and back A. He went between supplemental used on that unit. o’clock. nine “Q. they, heavy? thick and go back with Were. “Q. not But he did sir, ,No, just you No, something A. could sir. you o’clock? A. at seven notice the air. back? A. “Q. go did he When “Q. you any? Did and nine bother eight A. between It
Sometime my o’clock; burned nose. a watch did not have I. “Q. Severely just'1 sting? it was. know what time A.
do .not exactly sting. “Q. particular time At that Just
what, up “Q. always came There is A. He dust and did he do? fumes you your five out there and feel about four or it on lips bin there apd hit Yes, forth? so A. then he left? sir. tirqesand :¡c sjf.K >{í ‡ % % “Q. than Other little stinging sensation from the exhaust fumes there “Q. building large itself is nothing-unusual out there that aft- Yes, building? A. sir. Nothing except ernoon? A. that acid open many
“Q. sides? A. Is smell. sides; No, sir, open many it is “Q. But other than No, that? A. hardly open at all on the side.
it is not (Teal sir. had other duties than beat- open? “Q. is it A. The Where there is doors, quite between big place No. 3 and No. 4 can go ing 11 [*] bins.) [*] [*] [*] [*] [*] through. “Q. Actually he (Teal) sought for helpers far beating so as the bins is
“Q. quite a bit of air There is com- when concerned there was much sit too (Mills there ? on con- ing in below plus beating his other duties 6 feet platform crete about abov.e Yes, man to do? A. sir. might come in A. below ground.) “Q. helpers Services of to beat the above. does not come but it practice there, bins is usual out “Q. quite a But there is bit cir- Yes, it not? A. sir. Yes, A. sir. culation?
“Q. “Q. conditions it was And usual on day; day had been ? about the same it was done on this the same Yes, other when the sir. bins were not full ?
“ [*] [*] [*] [*] [*] [*] A. That is right. *16 “Q. you these acid noticed Had further
“Q. Actually then as far as prior day? to this concerned, fumes other time did Mr. Teal beating was No, A. sir. up and hit it come after seven o’clock “Q. they noticeable en- But were he not did
two or three times Yes, evening day? on this A. sir. beating that in further gage your “Q. they burned Enough that that I Not o’clock? A. after seven Yes, nose? A. sir. of. remember nearly you beat ing to whether you ficient these if we unless out about sir. (Redirect “Q. “Q. You “Q. “Q. About “Q. bins? do date? this, is it them. *** bins; you get your every shift? You do not And And make Examination) heat or A. the ore fail get ore A. shirt. that is practically on You beating, you Yes, sir. to'get you necessary we Yes, sir.” can were we do not perspire ? A. get what occurred have ore A. been temperature suf- you I believe I temperature out wring ? A. pounding It is to beat have to ore every shift questioned the sweat beat have to No, sir. accord- asked Yes, not; beat bins bins were when ground). ball Teal and Teal died. as he call two when we could not handle it there? the bins? A. Was Calvin Crowe come to beat “Q. mill, « “Q. “Q. perspiration; working (about 25 feet [*] helpers (Crowe) go up clean-up you only arrived; and did so with a Was Was On A. Boatright Little % beat the know of this come to that a Well, did; man Yes, particular day you help past [*] Teal beat the bins same bins? bins was warm where air it was sir. were Teal was two openings there regular beat seven o’clock help refinery to have A. circulating ourselves.” sledge working you quite dusty, occurrence Yes, sir, up [*] bins in the pretty beat on helpers hammer; from [*] got there night wet shirt same Teal’s Mr. “Q. Was right pretty close the air was hot Yes, sir. A. way? up there. * * * you “Q. getting that circulation Were fresh does air in
”Q. vicinity anywhere you where else? A. reach of air openings There are some on the cat walk? bins the build- on the pounding yes, ing, sir. No, sir. *17 thing happen you wanted to you coming air “Q. fresh get Was potash Yes, you down had to beat it down. working? you were A. where through sir, circulate fresh air would “Q. beating get- of the bin was there. ting regular pretty more chore on shift; every much one bin or another odors you other
“Q. Did notice had ore beaten out itof at times? A. day? that than dust other smells Well, spent quite I a few shifts where Yes, sir, I did. A. I never beat the bin. smell like? did it
“Q. What A. “Q. you spent quite And a few Well, familiar with I am not Yes, you did? A. sir. they processing chemicals, usе in what a continuous smell there is potash, “Q. you spent this As a matter of fact me all the time. in there you more shifts when did than when you your it affect “Q. Did you say did not? IA. would not for made me short A. breathing? sure; say I would not want to whether them winded. I beat them more or beat less.
you ever “Q. Was smelled it a acid? burning A. smell; have Yes, sir. “Q. (< ‡ Did Jji you notice some odor }{< ‡ [*] there [*] refinery you anything like acid ? that no- “Q. it smell Did before, ticed some sir, something like acid smell? A. I Yes, it smelled A. say would not it was acid but there was
acid.” up that something smelled there to me. Examination) (Cross “Q. But it was the same smell that sweaty up there you get “Q. Did before; you had smelled there was Yes, sir. A. day? peculiar day, air nothing there works Anybody who “Q. work, A. I do not know if they was there? it If sweaty ? A. a little
gets anything peculiar or whether I yes, sir.
t( “Q. Had ^ jfc you [*] ever [*] beaten [*] bins be- [*] winded worked harder day. but I know I got short you temper- “Q. Do know what the night in Au- particular fore day? No, A. sir. ature Yes, sir. A. gust? “Q. They pretty are all hot in the regular work pretty
“Q. That Yes, refinery? sir. A. working around the re- are you when “Q. you nothing noticed strange But they run out of ore A. When finery ? day except you the smell that said you had some- regular pretty him; procured assuming Well, could A.
yоu got short winded? (cid:127) assuming facts true and those to.be smells. history pre-existing was no “Q. all the time does It smells ailment, or heart would trouble Well, worse some it smells not? A. you place a causal connection with the others; use a days than know pounding the walls of this not know what it is. chemical but I do bin, type of work was do- steel reg- how “Q. And not know do A,' ing, collapse death? with his No, A. infrequently? ular or how relationship might possible causal ex- A sir.” ist there. Expert) (Medical Dr. Salmon “Q. would that be? What *18 (Dr. only ques- Salmon was the witness Well, you the series of circumstances ap-
tioned as to the cause There of death. might have related be considered to be parently autopsy.) was no extraordinary effort in the course these facts to you “Q. assume Will occupation partic- that of this man’s at true; Teal died on R. that be Jesse time, ular and the combination of con- employ- place at his August might ditions have had an effect twenty-two refinery potash in a ment underlying some condition which had Mexico, Carlsbad, New East of miles light prior not come to to that time. In reg- at employment and work following words, type exertion, other that hours, three to work going ular himself, he situation in which found working and afternoon in the o’clock have could resulted in a strain which pound- heavy a following that precipitate a might an acute or sudden bins with four metal sides of ing on change body resulting within his in- and side near the roof hammer sledge a particular death at that time. under building condi- a metal walls “Q. any In precipi- the absence of air, perhaps poor dust heat and tions causes, tating you would be of the including in the air things other and opinion that this and exertion the con- fumes; he following exertion acid precipitated ditions could have this col- terms as overheated what became lapse possible and death. A. It is period of addi- short after a later might precipitat- these conditions have refrigerated to the went tional collapse ed death. building and was fountain water “Q. shortly Excluding possibilities, other thereafter uncon- found you opinion within would thеn scious, he later died as to- precipitate whether this would medical attention while before short A. “Q. some of'These? are -What ques- answer ? I cannot death Á. any Practically condition. stated ‘no’, Ias ‘yes’ or tion a direct n Yes, sleep? “Q. A. sir. Even possible these circumstances ' chair?' A. “Q. sitting in a While death; having brought about Yes, sir. ‘yes’ ‘no’, I can- opinion definite of a nor- “Q. eating- Following the categorically.
not state Yes, sir. mal meal? A. Yes, sir, “Q. happen? A. could ’ “Q. any oth- And one of a thousand happen.” it could Yes, A. er situations? sir. Examination) (Cross “Q. physical final During which the “Q. circumstances same Under the change disease as the result of this opinion that the col- you have an do possi in death It is would result ? A. been caused lapse and death could have ! ble, yes, sir. any things? number other A. “Q. circum- Under of these yes, possible, sir. It is Yes, stances? A. sir.” << ‡ ‡ jjs % (Redirect Examination) collapse “Q. and death of Mr. If the “Q. I possibilities, other believe brought about a cardiac Teal stated, you you had an would where hypo- you under the given cоndition underlying heart disease? A. That facts, your thetical statement right. and col-’ opinion that such condition “Q. ask I will whether not brought about or lapse could be would person age great has deal brought by a about dis-' have been ability do to with his to stand strain on previously, ease ? As answered cardio, system vascular ? *19 of conditions includ- is a combination I A. am sure does.” words, process. In other ing a disease (cid:127) rebuttal', Vaughn Hayes, on a' refinery free, individual, shall we normal helper worked on the shift disease, who with Teal would say, life not' of heart day he died. by this of circum-' jeopardized set be ' “Q. there, about the air What stances, of heart' combination but the up coming. air there there fresh could these circumstances disease and A, around this going Maybe out bin? be fatal. -b 'o some. “Q. underlying there is Where ‘ You'say some;- “Q. there-may many many, there not cir-
condition are explain how there you could-bei would collapse arid death cumstances where some, -where comes .from and Yes, Pr could occur? A. sir. (cid:127) á32 Well, maybe goes to? there coming air down below
some openings doors and some of those through there.
down there? A.
“Q. Are fans that I remember.
Not high about how “Q. This roof You you there? A.
from where ? here platform
mean from the sev- Yes, It would be
“Q. sir. A. * * * feet
eral many how
“Q. estimate Can ten maybe about imagine
feet? A. top.” feet to
or twelve
William F. KUERT, Appellee.
Florence
No. 5973.
Supreme of New Court Mexico. 3, 1956.
Jan.