CT Hughes Construction Company v. Phillips

1965 OK 66, 401 P.2d 498, 1965 Okla. LEXIS 320
CourtSupreme Court of Oklahoma
DecidedApril 20, 1965
Docket41031
StatusPublished
Cited by9 cases

This text of 1965 OK 66 (CT Hughes Construction Company v. Phillips) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CT Hughes Construction Company v. Phillips, 1965 OK 66, 401 P.2d 498, 1965 Okla. LEXIS 320 (Okla. 1965).

Opinion

BLACKBIRD, Justice.

This is an original proceeding by C. T. Hughes Construction Company, employer, and its insurance carrier, Tri-State Insurance Company, to review an award made to Willie L. Phillips, claimant, by the State Industrial Court under the death benefit provisions of the Workmen’s Compensation Act.

On August 27, 1963, claimant filed her claim as the surviving widow and sole dependent heir of Virgil Floyd Phillips, deceased. She alleged that on August 12, 1963, deceased sustained an accidental injury arising out of and in the course of his employment with the above employer which resulted in his death on the same day. She filed an amended claim on November 21, 1963, which did not materially change the allegations. Petitioners here, respondents below, filed their answer denying that deceased died as a result of “any alleged injury, but died as a result of other causes.”

On January 22, 1964, a hearing was had before a trial judge of the lower court. At that time it was stipulated by the parties that deceased was employed by employer on August 12, 1963, and that he was covered by a workmen’s compensation insurance policy; that deceased became sick on the job and was dead on arrival at the hospital.

Claimant testified that deceased was 58 years of age at the time of his demise; that he had worked for employer 8 years; that he had never been off work during that time because of illness; that he had only been to a doctor one time and that was for an “allergy in the throat;” that deceased was a “mortar man” for employer.

Claimant introduced into evidence, without objection by petitioners, the deposition of Homer Chadwick, which was taken on January 8, 1964. Chadwick testified that he was the “masonry foreman” for employer; that deceased worked “under” him as a mortar man; that on August 12, 1963, he and deceased were working at the General Motors Building in Oklahoma City; that deceased went to work that morning at approximately 7:30 A.M., to prepare the mortar for the brick layers who went to work at 8:00 A.M.; that on that job he didn’t know whether the mortar was mixed by deceased by machine or by hand; that they finished that job at about 10:30 A.M., and went to employer’s office in another part of town where they were to do some “make-up work” raising a wall; that witness was working on a scaffold that was approximately 8 feet high and that the scaffold was inside the partially completed building. (It had been previously stipulated that there was no roof on the building on the above date.) Witness testified further that they began work on this job at about 11:00 A.M.; that deceased made the mortar for this project by hand in a wheelbarrow; that in making the mortar, deceased would put sand in the wheelbarrow with a shovel, the cement in with the sand either by shovel or by picking up a sack and pouring it into the wheelbarrow and along with water, mix the sand and cement together by chopping it with a hoe; that a sack of cement weighs 50 pounds and that he was sure deceased *501 carried some of the 50 pound sacks because witness was using “masonry cement”; that after the mortar was mixed, deceased would put it into a five gallon bucket with a shovel, then raise the bucket of mortar by rope and pulley up to witness on the 8 foot scaffold; that a shovel of the mortar weighed “maybe 15 or 20 pounds” and that usually two and one-half to three shovels of mortar were put into the bucket; that deceased had pulled up 12 to 14 buckets of mortar to the scaffold when he asked witness “if it would be all right if this other boy mixed the mortar” and that was the first indication he had that deceased was sick. Witness testified that prior to deceased making this request to be relieved from mortar mixing, there had been some blocks or bricks transported to the scaffold. An excerpt from his testimony is as follows:

“Q. Allright, when did this take place ?
“A. Oh,- — -I would say 1:30 we had gone back to work.
“Q. Now, was there any blocks or bricks or anything transported to this scaffold, I believe you mentioned previously about a truck backing up there ? “A. Well, I’m sure there was.
“Q. And who would place the blocks up there?
“A. Well, Mr. Phillips or this other boy—
“Q. What would these blocks weigh ?
“A. I imagine they would weigh around 30 or 35 pounds.
“Q. And how — about how many of them were there?
“A. I imagine — I wouldn’t, or couldn’t be definite, but I imagine there was maybe a 100 or 150 there in the walls up there.”

The witness also testified that “it was about 103 or 104 that day, it was a hot day”; that deceased was “wheelbarrowing” sand from one sand pile to the location where he mixed it with the cement and that the location was in the sun; that when he relieved deceased from his duties at his request deceased went into a little room which also had no roof on it and “kind of enclosed” but didn’t stay there long, came out of the room and went to the back of the building where there was some shade; that he talked to deceased a few minutes and went back to work; that shortly thereafter he looked around and deceased had passed out, down “on his stomach”; that deceased regained consciousness and started walking around and went unconscious again; that deceased again regained consciousness, leaned against a wall, smoked a cigarette and “talked to us” and then died; that prior to his death, deceased said to him “ ‘Homer, before we see the doctor, I feel sick at my stomach and I’m going to the bathroom.’ ”

“Q. Was that the only time he complained of pains in his stomach or pains • — chest pains?
“A. Yes.”

On cross-examination, Chadwick testified that the usual way to mix mortar was with a mechanical cement mixer; that normally deceased did not have to mix mortar with a hoe but would use a mixer; that on the job where deceased became ill “I had no mixer there so we had to do the next best thing.”; that on the General Motors job, which took four months to finish and was the project which was completed in the early morning of deceased’s death, deceased did not mix mortar in a wheelbarrow but used a mixing machine.

Claimant introduced into evidence a medical opinion by Dr. R which was predicated-upon the following hypothetical question:

“ ‘Assume a white male, age 58, working on August 12, 1963, working for the C. T. Hughes Construction Company, who was of small build, and who had been employed as a mortar-man for eight or more years, and had not missed any time from work due to illness; and who had successfully performed his work for employer; and who had a negative medical history for any illness other than one medical *502 treatment for an allergy during the past eight years; and who on the day of his death went to work at 7:30 or 8:00 A.M., and who died at approximately 2:00 or 2:30 P.M., and in the period of time before his death and after commencing work, had made mortar to set some tiles inside the General Motors building; and at approximately 11:00 A.M.

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Bluebook (online)
1965 OK 66, 401 P.2d 498, 1965 Okla. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ct-hughes-construction-company-v-phillips-okla-1965.