United States Casualty Co. v. Richardson , 75 Ga. App. 496 ( 1947 )

Gardner, J.

It is admitted by the employer that the accident occurred in the course of the employment, but it is contended that it is not compensable for the reason that it did not grow out of the employment. To state it differently, it is contended by the employer that the claimant received his injury from the epileptoid condition or attack and that there is no evidence that the accident arose out of the employment. It is contended that there is no causal connection between the accident and the employment. This contention is based on the principle that the evidence fails to show that the epileptic attack was caused by exertion peculiar to the employment proximate enough in time to be a contributing proximate cause of the attack. It is contended in this connection by the employer that the only competent evidence of excessive exertion was stair climbing. The physicians who testified in the case were asked a hypothetical question based upon undisputed evidence. This hypothetical question was in substance: “If a man works all day as a salesman, that is, from 8:30 a. m. until 6:30 p. m., waiting on customers, standing on his feet all day, making several trips up flights of stairs and trips down stairs to the basement, and this man was subject to epileptoid attacks, would it be probable that such exertion and strain would be likely to bring on an attack?” All of the physicians answered in the affirmative. On cross-examination, the physicians further testified that one suffering from an epileptoid condition might have an epileptic attack without any excessive exertion. And also that excessive exertion would not necessarily bring on, in every instance, an epileptic attack. We do not think that the argument of counsel for the employer to the effect that the only evidence of excessive exertion was stair climbing is correct. It is true that there is no evidence as to just what time of the day the claimant climbed the stairs nor how long after the last climbing the physical seizure occurred. But in dealing with the hypothetical question propounded to the physicians, it was the duty of the director to consider the whole of the evidence embraced within the question. From this viewpoint, we are inclined to the view that the director was authorized to find that the epileptic attack was brought on by the excessive exertion of the claimant peculiar to his condition and peculiar to the emplojunent, and that therefore the accident arose out of the employment. The cases in this State have established little, if any, limitation on the type of causes which may be concurrent with the contributing cause of exertion. It is established that an accident, under the act, may result from the contributing proximate cause of exertion in the course of employment, plus such other contributing proximate causes as: (a) an act of God, being heat of the sun. Fidelity Guaranty &c. Co. v. Adams, 70 Ga. App. 297 (28 S. E. 2d, 79). Or (b) a weakened condition of the employee being caused by previous self-medication. Bibb Manufacturing Co. v. Alford, 51 Ga. App. 237 (179 S. E. 912); (c) a diseased condition of the employee caused by arteriosclerosis or high blood pressure. Griggs v. Lumbermen’s Mutual Casualty Co., 61 Ga. App. 448 (6 S. E. 2d, 180); Lumbermen’s Mutual Casualty Co. v. Griggs, 190 Ga. 277 (9 S. E. 2d, 84); Williams v. Maryland Casualty Co., 67 Ga. App. 649 (21 S. E. 2d, 478). There would seem to be no difference between an epileptoid condition of an employee and that of one suffering from arteriosclerosis.

Counsel for the employer earnestly argue that the evidence in the instant case fails to show that any immediate excessive physical exertion was the contributing proximate cause of the injury, and in support of this contention cite Fidelity & Casualty Co. v. Adams, Bibb Manufacturing Co. v. Alford, and Griggs v. Lumbermen’s Casualty Co., supra. We do not understand that the decisions in those cases base the last or immediate act of the claimant as being indicative of the excessive exertion, but to the contrary, the whole of the activities specified in each of the cases was evidentiary of the excessive exertion. So also must we take into consideration that the approximately ten-hours exertion of the claimant in standing on his-feet, making sales and going up and down stairs, and other acts and circumstances embraced within the scope of the hypothetical question, was exertion and not any particular act. In the Workmen’s Compensation Act we do not find the word “immediately” used except in the Code, § 114-412, dealing with hernia. Under that section in the fourth requisite for a compensatory hernia resulting from accident, the law provides that the hernia resulting from accident, must follow the accident immediately. For a discussion of the word “immediately” as used in this section, see Liberty Mutual Ins. Co. v. Blackshear, 197 Ga. 334 (28 S. E. 2d, 860). From this viewpoint we think the award is based upon sufficient evidence to sustain it.

We come next to consider whether or not the award is legally sustainable irrespective of whether excessive exertion brought about the epileptic attack. The seizure of the claimant caused him to fall on the sharp corner of the table which caused the skull fracture and the injury to his brain. This table with a sharp corner was a hazard of the employment to which the claimant was subjected. Horovitz on Workmen’s Compensation, p. 145, deals clearly with the question before us. “Where the cause of the fall is personal to the worker (as a non-industrial heart attack, dizzy or epileptic spells, or any idiopathic condition) the fact that the floor is of rough cement instead of wood and hence more dangerous, is no ground for an award in Massachusetts. [Citing Cinmino’s Case, 251 Mass. 158 (1925)]. But awards are upheld there and in most States, if the fall is on a stairway or into a machine or against anything except the bare floor, and especially if the fall is from a height, as the risk of injury is increased, or is a ‘special danger of the employment.’ ” The author cites a number of decisions to sustain his statement. One of the last eases under the Workmen’s Compensation Act which has come to our attention analogous to the facts in the instant case, is that of Rewis v. New York Life Ins. Co., 226 N. C. 325 (38 S. E. 2d, 97). In that case an employee was on the eleventh floor, went into a washroom where he had an attack of faintness from “idiopathic ulcerated colitis which had plagued him for several years.” In an effort to get some fresh air he went to an open window, from there he fell to his death on the roof of an adjoining building. The court held that the employee sustained an accidental injury arising out of and in the course of his employment. The North Carolina court citing with approval Rockfort Hotel Company v. Industrial Commission, 300 Ill. 87 (132 N. E. 759, 19 A. L. R. 80), said: “In the case last cited a workman, while in the discharge of his regular duties, was seized with an epileptic ñt and fell into an ash pit, where hot cinders had been thrown as he removed them from a furnace, and he was burned to death. It was held in conformity with the findings of the Industrial Commission that' the workman did not die from epilepsy or pre-existing disease, but from the burns he received when he fell into the pit, the court saying: ‘some cases hold that, where an employee is seized with a fit and falls to his death, the employer is not liable, because the injury did not arise out of the employment (citing authorities); but a majority of the courts, American and English, hold, that, if the injury was due to the fall, the employer is liable, even though the fall was caused by a pre-existing idiopathic condition.’ This view is supported by decisions in a number of jurisdictions. Gonier v. Chase Companies (Chase Metal Works), 97 Conn. 46, 115 A. 677, 19 A. L. R. 83 (painter while working fell to his death from scaffold when seized with attack of vertigo); Cusick’s Case, 260 Mass. 421, 157 N. E. 596 (employee fell down flight of stairs in course of employment and sustained fatal injuries — fall occurred during attack of epilepsy); Barath v. Arnold Paint Company, 238 N. Y. 625, 144 N. E. 918 (workman in course of employment fell from scaffold to his death following an epileptic stroke); Wicks v. Dowell Company, 2 K. B. 225, 2 Ann. Cas. 732 (workman while unloading coal from ship was seized with epileptic fit and fell down hatchway near which -he was required to stand); and additional cases which may be found of similar import. See Ætna Life Insurance Company v. Industrial Commission, 81 Colo. 233, 254, p. 995.”

While it is true that the State Board of Workmen’s Compensation based its award on the principles discussed in the first division of our opinion, nevertheless we think the award is right under the principle discussed in this, the second division of our opinion. “If the judgment is right, it should be sustained, though the reasons given for the judgment may be erroneous.” Hill v. Rivers, 200 Ga. 354 (37 S. E. 2d, 386). In making this last statement we do not mean to infer that the award is not sustainable for the reasons we have given in the first division of our opinion. We simply mean to say that it is sustainable under either the first or the second division of the opinion.

3. The motion to dismiss the bill of exceptions as being too general, is denied. The motion tó assess damages for delay is likewise denied.

The court did not err in affirming the award of the State Board of Workmen’s Compensation for any of the reasons assigned.

Judgment affirmed.

MacIntyre, P. J., and Townsend, J., concur.