Teal v. Potash Company of America ( 1956 )

SADLER, Justice.

The defendant below, as an appellant before this Court, complains of a judgment against it in favor of the plaintiff as the dependent widow of Jesse R. Teal in an action prosecuted under the provisions of New Mexico Workmen’s Compensation Act, 1953 Comp. § 59-10-1 et seq., for the death of her husband from an injury found to have been suffered by him in the course of his employment by the defendant company. The case was tried before a jury in Chaves County, where the action was brought, though the decedent was employed and met his death in Eddy County, New Mexico.

The decedent was 66 years of age at time of his death, having continued in his work past retirement age, and was what is known as a ball mill operator in the potash ore refinery of defendant, located about 20 miles out of Carlsbad in Eddy County, New Mexico. He had been in defendant’s employ for about 12 years. For some time preceding his death he had been in charge of the operation of four ball mills, Nos. 1 through 4, being thus in a position where he naturally was called upon to exercise some supervision over other employes engaged in ball mill work. He enjoyed the aid of a helper to assist in the ordinary labor of the operation.

At this point, it may be well to enter into some explanation of just what a ball mill is and the nature of its operation. The ball mills are large metal containers into which ore is fed by a belt conveyor from ore bins directly behind and slightly above the ball., mills. Naturally, ore comes into the bins, in varying conditions and at times when they are getting- no ore from the mines the bins cake up on their insides and it is necessary to beat them on the outside to get the ore mesh loose and feed the ball mill. When the ore comes from the mine, it goes into the drying mill where it is ground into a quarter inch mesh, and from there it goes by conveyor belt to the storage bin directly behind the ball mills. David Goldsmith, Refinery Engineer for defendant, gave a somewhat lucid description of the operation under questioning by defendant’s attorney, as follows:

“Q. I hand you Exhibit P-3 and will ask you to state what that is? A. These four bins here are the ore bins that hold the ore in back of the ball mill, and this conveyor comes up here over the top of the ore bins to deliver the ore.

“Q. This conveyor that brings the potash into the ore bins? A. Yes, sir.

“Q. And the potash will then drop down into the ball mill? A. It drops into the ore bin.

“Q. What happens when the ball mill operator is not receiving enough ore, what is the reason for that? A. There may be trouble in the mine that the ore is not coming into the shaft, or there might be a break down in the drying mill, and when that happens ore naturally feeds out of the center of the ore bin and leaves ore more or less caked up on the side of the bin.

“Q. What happens when they are not receiving ore and the ore has drained down through the center? A. They have to beat around the edges of the bin at the bottom to start the flow of ore.”

The defendant worked three shifts and the decedent went to work with his shift at 3:00 p. m. on the day of his death, August 9, 1954. His helper had brought in a quantity of lead which was necessary in the operation of the ball mills. About 4:00 p. m. of this day ore from the large steel ore storage bins stopped feeding through to the ball mills, due to failure of production in the mines. This left a residue of ore now reduced to mesh caked to the interior sides of the storage bins. Accordingly, the decedent and his helper started beating the sides of the storage bines with heavy sledge hammers provided for that purpose in order to get the ore loose from the sides of the bins and start its flow anew into the ball mills. No other or different means of shaking loose caked ore from interior sides of the bins seems to have been improvised.

The day was hot. . The work was heavy and hard and decedent and his helper were required to operate on a catwalk in a narrow space of two feet between the side walls of the building and the bins. The building was made of galvanized tin and the room of the same material. It had a tendency to receive and store heat, with very little circulation of air up near roof of the building where they were compelled to work, the bins being elevated some 25 feet above the ground.

Aside from the dust, heat, poor circulation and cramped quarters under which decedent and his helper labored, further discomfort arose this particular day from the fact that a new experimental process was being tested in ball mill unit No. 4. Its use caused certain fumes to spread throughout their working quarters to such an extent that they induced a stinging, or smarting, sensation in the nostrils of the workmen and as well a noticeable shortness of breath. ■ While experimentation with this new process had been underway in mill No. 4 for some time prior to this day, for a seemingly unknown reason on this particular day the fumes from the operation were present in a more noticeable degree than on any previous day.

So it was and under such conditions that decedent and his helper worked at beating the bins from about 4:00 p. m. until 7:00 p. m., with a slight break for lunch around 5 :00 p. m., after which they were aided by two additional workmen sent over by the shift boss to aid because of the stubbornness and tenacity with which the ore remained caked against the sides, in spite of all their pounding. It was during this slight pause for lunch that decedent confided to his helper that he “had got too hot up there,” indicating the place where they had been beating the bins. The beating had continued uninterruptedly from 4:00 p. m. to 7:00 p. m. with the short break for lunch just mentioned.

There was no further record or testimony of labor by decedent from around 7:00 p. m. until somewhere around 8:00 or 9 :00 o’clock p. m. when he was seen to pick up his sledge hammer and give one of the bins a few poundings with it. Shortly after this, he was last seen alive getting a drink of water from the refrigerated water fountain down on the main floor, near which and around 9:00 p. m., he was found in a state of collapse and unconscious at the water fountain with his head slightly under it. The shift foreman was promptly notified and artificial respiration was resorted to immediately. Since there was no doctor at the refinery, one was called from Carlsbad, some 20 miles away, but he had not arrived before death overtook decedent and they had begun the journey to Carlsbad with his. body.

Since the chief claim of error arises on a challenge to sufficiency of the evidence to-sustain the verdict returned, we have reviewed it with painstaking care and must give it as our considered judgment that it meets the requirement of substantiality. We are not unmindful that the exact and precise cause of death is not established, with the degree of proof desirable. But death occurring with the nearness it did to. the extreme strain and exhaustion decedent had just undergone, plus the conditions, under which he labored, all contribute to make it a matter of permissible inference,, in our opinion, whether the strain and exhaustion were not a proximately contributing cause of the workman’s death and,, hence, compensible under our Workmen’s. Compensation Act.

Of course, the Act does not make-file employer an insurer of the employee-against injury or death occurring during-his hours of employment. Martin v. White Pine Lumber Co., 34 N.M. 483, 284 P. 115; Aranbula v. Banner Mining Co., 49 N.M. 253, 161 P.2d 867. And the burden is. always on a plaintiff to establish that the-employee sustained an accidental injury in-the course of his employment and arising-out of it. Clower v. Grossman, 55 N.M. 546, 237 P.2d 353; Campbell v. SchwersCampbell, Inc., 59 N.M. 385, 285 P.2d 497. But where, as here, there is a sequence of' events in rapid order, such a brief hiatus of time between the exertion, followed by the quenching of thirst with refrigerated water and, then, sudden death, the natural experience of mankind suggests there likely is a causal connection between the strain and exhaustion, on the one hand, and the consequent death on the other. The latter, of course, may not rest on mere suspicion, surmise or guess. Campbell v. SchwersCampbell, supra. But it may arise as a fair and legitimate inference from circumstances in evidence. Clower v. Grossman, supra.

If, as a matter of fact, the decedent’s death arose from over-exertion, exhaustion and strain, working under the conditions shown one of which, to say the least, was fumes from the testing of a new process, inducing among other things, shortness of breath, we think a jury would have no difficulty in inferring it resulted from a cardiac injury arising out of and in the course of employment within definitions of an accidental injury approved by this

Court. Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1; Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342; Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002; Hathaway v. New Mexico State Police, 57 N.M. 747, 263 P.2d 690. In the case first cited, next above, Christensen v. Dysart, supra [42 N.M. 107, 76 P.2d 4], after citing many cases, we quoted approvingly from one of them, as follows:

“In Hill v. Thomas S. Gassner Co., 124 Pa.Super. 217, 188 A. 382, 384, the court said:

“ ‘Death in the ordinary course of employment, resulting from strain upon the heart caused by unusual exertion, is an accident within the meaning of the workmen’s compensation statutes. * * On the other hand, death occurring while in the discharge of usual duties, in a normal manner without exceptional effort, is insufficient to establish a “mishap” or “fortuitous happening.” ’ ”

True enough, the expert testimony of the medical witnesses did not go so far as to affirm that a heart attack was the cause of death and, if so, that it likely or probably resulted from the strain and exhaustion which decedent had just experienced, as outlined in the testimony. The most such witnesses were willing to say was that the sudden collapse and death of a man under the conditions shown who, until that time had enjoyed good health and had never before experienced vascular coronary trouble, might very well be attributed to such an attack then. These witnesses were frank enough to agree, however, that death under such circumstances could be attributed to other causes, or might follow when one was engaged in no activity whatever.

So ran the testimony of the expert witnesses which the jury was privileged to accept, reject, or give such weight only, as it deemed the same entitled to have. Jamison v. Shelton, 35 N.M. 34, 289 P. 593; Elsea v. Broome Furniture Co., 47 N.M. 356, 143 P.2d 572. But if the medical testimony were ignored altogether and the factual issue present determined by drawing upon the vast reservoir of human experience common to the jurors, as well as to all men, who can say they were indulging in mere conjecture and surmise in saying this decedent died of a heart attack due to strain and exhaustion? Indeed, would the jury not be resolving factual probabilities in inferring that the unusual strain on decedent’s heart, helped along by difficulty in breathing caused by fumes from testing a new process, invoked a heart attack and death. We think the jury had substantial evidence to support a verdict so reached.

We think it is to lose sight of the realities to hold injury or death from strain upon the heart caused by unusual exertion in meeting an emergent situation, outside performance of the ordinary duties of one’s employment, is accidental and compensable, and deny character as accidental to a like injury or death where the physical exertion producing it was a concomitant part of regular performance of the duties of another’s employment. To elucidate, if a workman whose job is one involving minor physical exertion from day to day, while on the job is called upon by a sudden and emergent situation, to exert unusual physical labor the strain of which produces a heart attack, the injury or death is accidental. Hathaway v. New Mexico State Police, supra. But if it so happens that the ordinary day to day performance involves hard, heavy labor, constantly, and one pushes oneself to the point of exhaustion precipitating a heart attack, it is not accidental.

There would be neither consistency nor logic in such contrary views. After all, it is the physical effort employed, the straining of oneself to the point of exhaustion, in either case, which produces the “unintended,” the “unexpected,” and the “unlooked for” result enabling the courts to characterize the injury or death as accidental. The physical exertion producing the strain on the heart is the same in either case and, obviously, had the workman exerting known or expected the result which followed, he would never have so exerted himself. Hathaway v. New Mexico State Police, supra; Godsman v. Grumman Aircraft Engineering Corp., 268 App.Div. 945, 51 N.Y.S. 2d 368; Barker v. Narragansett Racing Ass’n, 65 R.I. 489, 16 A.2d 495, 17 A.2d 23; Toland v. Murphy Bros., 172 Pa.Super. 484, 94 A.2d 156. See, also, Erholtz v. Balkan Min. Co., Minn., 70 N.W.2d 863; Gatto v. Newark Plaster Contracting Co., 12 A.2d 867, 18 N.J.Misc. 307.

In order to make out a case calling for a directed verdict for the defendant employer here, one is compelled, contrary to the governing rule, to weigh the evidence and draw inferences against the verdict, which under a wealth of authority, illustrated by numerous decided cases, should be resolved in favor of the verdict. Snodgrass v. Turner Tourist Hotels, 45 N.M. 50, 109 P.2d 775; Giles v. Herzstein, 49 N.M. 41, 156 P.2d 160; Madsen v. Read, 58 N.M. 567, 273 P.2d 845.

Other claims of error are presented and argued, one being error in the trial court’s action in denying defendant’s motion for a directed verdict, and two others in refusing certain specially requested instructions. We have duly considered the points argued and do not find merit in any of them. Indeed, as to the first one mentioned, the disposition made by us of the first claim of error discussed, namely, sufficiency of the evidence to sustain the verdict, resolves it against defendant. And, as to those relating to the instructions, when we view them as a whole no doubt remains but that the jury was adequately charged with reference to the issues submitted.

The plaintiff asks for an allowance to her of some reasonable amount as attorneys fees for services of her attorney on this appeal. She will be granted the sum of $750 on this account.

Finding no error, the judgment will be affirmed.

It is so ordered.

COMPTON, C. J., and LUJAN and KIKER, JJ., concur. McGHEE, J., dissents.