Kelly Bros. Contractors, Inc. v. Windham

410 So. 2d 1322
CourtMississippi Supreme Court
DecidedMarch 17, 1982
Docket53064
StatusPublished
Cited by2 cases

This text of 410 So. 2d 1322 (Kelly Bros. Contractors, Inc. v. Windham) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly Bros. Contractors, Inc. v. Windham, 410 So. 2d 1322 (Mich. 1982).

Opinion

410 So.2d 1322 (1982)

KELLY BROTHERS CONTRACTORS, INC., Employer, and Travelers Insurance Company, Carrier,
v.
Dependents of Gentle WINDHAM, Deceased.

No. 53064.

Supreme Court of Mississippi.

March 17, 1982.

Gibbes, Graves, Mullins, Bullock & Ferris, Brooke Ferris, Laurel, for appellant.

William B. Sullivan, Laurel, Peter K. Smith, Quitman, for appellees.

Before WALKER, ROY NOBLE LEE and DAN M. LEE, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Clarke County, Mississippi, affirming an award of death benefits under the Mississippi Workmen's Compensation Act, payable to the dependents of Gentle Windham, deceased. Windham was injured in a job-related accident on June 29, 1977, while employed as a truck driver by Kelly Brothers Contractors, Inc. when the truck that he was driving turned over and injured his head. He received benefits as the result of his injury, but died before reaching maximum medical recovery.

The administrative judge found the evidence insufficient to establish a causal connection between the June 29, 1977, injury and Windham's death. The full commission reversed, finding Windham's death accidental and compensable because the medication taken by him was prescribed for relief of the symptoms caused by his industrial injury. The full commission's finding was appealed to the circuit court and Kelly Brothers Contractors, Inc. and Travelers Insurance Company appeal from the circuit court's order affirming the commission's findings. We affirm.

Appellant assigns the following as error:

1. The intentional and negligent act of the decedent constituted an independent intervening cause of death, barring recovery.

2. The legal principle relied upon by the lower court, and the commission, has no application in this case, and is not controlling.

3. The hypothetical question propounded to the psychiatrist was improper and the medical evidence was insufficient to establish a causal relationship between decedent's injury and his death.

On June 29, 1977, Windham, an employee of Kelly Brothers Contractors, Inc., overturned a truck while attempting to unload dirt therefrom. Following the accident, he *1323 was treated by Dr. Charles Bush of Waynesboro, Mississippi; however, Dr. Bush referred him to Dr. Loren Fleckenstein, a specialist in neurological surgery.

Windham's history revealed severe generalized headaches following the accident. He denied being knocked unconscious but related he could not hear out of his right ear and experienced numbness in his right arm. The accident also loosened his teeth. He exhibited anxieties about his state of health that were inordinate for the normal individual, appearing overly worried about minor symptoms. Dr. Fleckenstein again saw Windham on August 8, 1977, at which time he continued to complain of headaches and nervousness. He still exhibited anxiety and also hyper-reacted to stimuli on examination and blacked out on three or more occasions. On September 9, 1977, his headaches had improved, but he still complained of nervousness, so Dr. Fleckenstein referred him to Dr. William H.C. Dudley, a psychiatrist.

Dr. Dudley examined Windham on October 17, 1977, observing he was extremely depressed and anxious. Dr. Dudley attributed Windham's depression to the June 29, 1977, accident. Etrafon, a combination tranquilizer and antidepressant, was prescribed and Windham was scheduled to return in two weeks. When he returned, he looked better and reported dramatic improvement. His medication was changed from four times daily to four tablets at bedtime to correct irregular sleeping habits. He failed to return to Dr. Dudley at his next scheduled appointment.

Dr. Fleckenstein examined Windham for the last time on November 28, 1977, and Windham related he felt all right and was ready to return to work, which never occurred because he passed away under bizarre circumstances on December 7, 1977. Dr. Fleckenstein never prescribed any medication for Windham due to his limited mental capacities regarding understanding of instructions.

Windham's wife and daughter asserted he changed following the June 29, 1977, accident, relating that following the accident, he blacked out on occasions, spent less time with his family, worried about paying the bills and providing for his family, and also beat his daughter on one occasion.

On December 7, 1977, Windham and his wife stayed together until about 3:15 p.m. He then accompanied T.B. Webb, John Arrington and Willie McGill to take John Arrington home. Windham, Webb and McGill then purchased a half pint of liquor and went to McGill's house for a friendly game of poker. Windham and Webb left at some point and went to Windham's sister's house to borrow some money, then returned to the game. When the liquor was gone and the game over, Webb took Windham by his sister's house once again. Apparently Windham was the big winner at the poker game. T.B. Webb then carried him home. No one asserted that Windham was drunk on this occasion.

Windham arrived home about 11:00 p.m., asked for something to eat and then went into the bedroom. When his wife walked into the bedroom, she saw him with a handful of pills and she told him to take only four, whereupon he threw the pills in his mouth and drank some water. He then tried to take some more pills; however, his wife successfully removed them from his hand. They began walking Windham and attempted to induce vomiting. However, he lost consciousness and subsequently died. Mrs. Windham asserted the pills he had taken were those prescribed by Dr. Dudley. He was forty-four years old at the time of his death.

The first assignment of error is: Was Windham's death the result of an intentional and negligent act which constituted an independent intervening cause of death, barring recovery?

In Medart Division of Jackes-Evans Manufacturing v. Adams, 344 So.2d 141 (Miss. 1977), this Court stated:

The general rule concerning an independent intervening injury is stated in 1 Larson's Workmen's Compensation § 13.00 at 3-279, as follows:
*1324 "When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct." (344 So.2d at 143) (emphasis added.)

The Mississippi Workmen's Compensation Act specifically excludes compensation where intoxication or willful intention of the employee to injure or kill himself is the proximate cause of the injury. Miss. Code Ann. § 71-3-7 (1972). In the present case, intoxication was not pled as an affirmative defense nor did the proof establish that Windham was intoxicated although he had been drinking.

In determining whether or not such conduct is an independent cause, this Court adopted the quasi-course of employment rule in Burnley Shirt Corporation v. Simmons, 204 So.2d 451 (Miss. 1967), wherein it is stated:

In 1 Larson, Workmen's Compensation Law section 13.11, it is stated that whether or not the claimant's subsequent conduct is an independent intervening cause cannot be determined by reference to conventional causation principles alone; but rather the test must include a combination of "course" and "arising out of" elements. Larson comments as follows:

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