
    Wytheville.
    Willie Edna Fox and Wallace Desmond Fox v. M. E. Bach and Maryland Casualty Company.
    June 18, 1931.
    Present, Campbell, Holt, Epes, Hudgins and Gregory, JJ.
    The opinion states the case.
    
      
      Hugh T. Williams, Marvin I. Walton, and Ida Mandle, for ' the appellants.
    
      Sinnott, May & Leaman, for the appellees.
   Epes, J.,

delivered the opinion of the court.

Willie Edna Fox, the widow, and Wallace Desmond Fox, the infant child of Carroll Fox, deceased, made a claim under the workmen’s compensation law of Virginia against M. E. Bach, the employer of Carroll Fox, and Maryland Casualty Company, the insurer of Bach, for an award of compensation for the death of Carroll Fox, which they allege was the result of a personal injury by accident arising out of and in the course of his employment.

Upon a hearing before Commissioner Deans, the Commission entered its order awarding compensation of $10.50 per week for 300 weeks, and $100.00 for burial expenses.

The defendants in error petitioned for a review of this award by the full Commission, and upon such review the Commission, Commissioner Deans dissenting, adjudged that the death of Carroll Fox was not the result of an injury arising out of and in the course of his employment, and dismissed the claim of the claimants. To this judgment of the Industrial Commission Willie Edna Fox and Wallace Desmond Fox assign error.

Carroll Fox died on Monday, December 16, 1929. The immediate cause of his death was a ruptured spleen. The contention of the plaintiffs in error is that his spleen was ruptured by a lick on his back given him about 8 A. M. on Saturday, December 14, 1929, by a man named Seegar, while Fox was engaged in the performance of his duties as an employee of M. E. Bach in the Bach sandwich shop in the city of Danville, Virginia.

The only evidence in the record is the testimony of the witnesses introduced by the claimants, and the only questions presented by this writ of error are:

(1) Does the evidence show as a matter of law that the lick administered by Seegar to Fox caused, or contributed to causing, the rupture, of his spleen?

(2) If so, does the evidence show as a matter of law that such injury arose out of and in the course of his employment?

Morris and Bach are the only witnesses who testify with reference to the nature of the lick and the circumstances under which it was received.

The following question and answers well epitomize Morris’ testimony on these points.

“Q. Did you see Mr. Seegar ?

“A. I noticed the gentleman, seated on stool. I found out later it was Mr. Seegar.

“Q. Tell what happened.

“A. What I saw was like this. * * * Seemed to be somewhat a playful argument going on between Mr. Fox, Mr. Seegar and Mr. Bach. He was standing back to cash register. .This play went on for some little time. Mr. Seegar was eating his breakfast. Mr. Fox was waiting on customer. Finally Mr. Bach told Mr. Fox to cut out so much playing and get to work. Says: ‘Here are some bottles in corner; take them back and put in case.’ Mr. Fox came towards him and reached down and Mr. Bach placed his hand on back of his neck. Said: ‘Hurry and take them on back.’ Mr. Seegar was seated opposite and reached over the counter and struck him a couple of light licks somewhere in his back. I don’t know exactly where. Mr. Fox got up and took the bottles on towards the back. * * *

“Q. Do you know as a matter of fact that the blow that he hit Mr. Fox did come in contact with his back?

“A. Some part of him; don’t know exactly where. Between back of neck and trousers.

“Q. What sort of blow; what was force of blow on Fox?

“A. From what I could see it was very light.

“Q. Did he hit with fist or back of hand?

“A. I didn’t see.

“Q. Can you indicate what sort of lick he gave Mr. Fox?

“A. Wrist motion, this way (indicating).

“Q. You say it was very light blow?

“A. As near as I could judge.

“Q. What, if anything, did Mr. Fox say after this blow?

“A. He said: ‘Look out, fellow, that hurt.’

“Q. Did you hear Mr. Fox complain of feeling badly the time you were in there?

“A. No, sir.

“Q. He complained of force of lick when he hit him, didn’t he?

“A. Don’t know whether you call it complaining or not. He said: ‘Look out, fellow, that hurts.’ ”

Bach’s testimony as to' the. nature of the lick and the circumstances under which it was given is as follows:

“A. Mr. Seegar happened to come in. Mr. Fox said: ‘What you want to have ?’ He said: T don’t want you to wait on me, you little wop.’ Fox said: ‘Who are you calling a wop?’ They made strike at each other. I said: ‘All right, you fellows cut out that playing, you are going to. break that stove.’ * * * I said: ‘Pick up them bottles and carry (them) in back and cut out that playing.’ He said: ‘All right, big boy.’ With that I got him by the head this way (indicating). Mr. Seegar reached over and slapped him with two fingers.

“Q. Just what did he use to slap him?

“A. Just two fingers. Had to reach over h> get him, twenty-two inch counter, just like that (indicating).

“Q. How high did he strike him?

“A. Well, about around the waist or little further down. They had been playing around there for seven or eight weeks previous. Mr. Fox two nights before that had hit Mr. Seegar in back and run out. Seegar said: T will get you.’

“Q. As a matter of fact, Mr. Seegar did hit him in the back twice ?

“A. Somewhere between the collar-bone and the back part, with two fingers.”

Dr. Bailey, who treated and operated on Fox, testified that: “He told me on Sunday that he had a blow on his back, but I could not see anything indicating damage at that time from blow, any blow over the spleen.”

Fox continued to work at his duties in the restaurant until about 9 P. M., when he left to go to the theatre to meet his wife. Soon after he got in the theatre he was taken very sick and was carried to his home. He continued very ill Saturday night and Sunday. Late on Sunday he was operated on, and died Monday afternoon.

The evidence bearing on the causal connection between the lick given him by Seegar and his death is as follows:

Bach testifies that Fox had been complaining for some sixty. days, and had been taking aspirin tablets very freely; that when he (Bach) came down to the restaurant about seven o’clock that Saturday morning Fox was sitting down in the back of the restaurant, and said to him: “I am not feeling so good today;” that he asked Fox: “Why don’t you go to- a doctor?” to which he replied: “I ain’t got no' money;” that he told him to> go ahead and he would help him, but Fox said: “After Christmas;” that about an hour after this conversation Seegar struck Fox the lick in question, but that though Fox stayed around the restaurant until nine o’clock that evening he did not hear him complain of his back hurting him.

Mrs. Fox testifies that-when Fox was taken sick in the theatre he complained of pains in his left side, just back of his left side; that she had never heard him complain of “feeling badly in side before;” or of his stomach or back; that of course he would have pains once in a while, but this was “the only pain to cause him any trouble;” that he had not had a doctor since their marriage, six years before his last illness, except when he had typhoid fever; that Fox had not been taking medicine before this accident, and “wouldn’t take B. C. because it went against himand that .after they had taken him home that Saturday night, about midnight, Fox told her about Seegar having struck him and said: “That blow certainly did hurt and I have been suffering from it.”

Dr. C. L. Bailey, who' was called to attend Fox on Saturday night and operated on him Sunday, testified as follows:

“Q. When were you first called to attend him ?

“A. Saturday night between ten and ten-thirty.

“Q. What was his condition when you found him ?

“A’. He was suffering acute pains in abdomen. He had vomited before I came. He was suffering a great deal. As he said he had one or two attacks of appendicitis trouble with his side, from his history I thought at that time he was beginning attack of appendicitis. I gave him hypodermic, put ice cap on his abdomen and waited until morning, at which time I •went to see him when his temperature was about ninety-nine, pulse about 100. He was a little rigid over right side, little tender. He said he had spent a very uncomfortable night and didn’t feel quite so well. I advised him to go to hospital. Took him to hospital immediately. His picture was rather peculiar one; didn’t show any enlargements of any kind. Was rather unusual. After association that day I decided I had better operate on him. I operated on him, made right side incision, and as soon as I opened abdomen I found it filled with blood. His temperature and pulse had not been over a 100 at any time. Nothing to indicate anything irrational. When I opened abdomen I immediately found this blood; I didn’t pay any attention to appendix at all. I knew that was the case. I looked for cause and! found that the spleen had been ruptured and I had to remove the spleen. He lived until the next afternoon, something like six or seven o’clock. He reacted from the operation pretty nicely and about five o’clock on Monday afternoon became delirious, respiratory, and he died.

“Q. Did you get from him any history of blow having been hit?""

“A. Yes, sir; he told me on Sunday night that he had blow on his back, but I could not see anything indicating damage at that time from blow, any blow over the spleen.

“Q. Did he point out to you on his back where he was struck ?

“A. He told me back here (indicating).

“Q. That place is right over the spleen?

“A. Yes, sir.

“Q. If he had received blow there it is possible to have broken spleen?

“A. It is rather peculiar case, most unusual, that a blow could rupture the spleen. It is hard to believe. If anybody told me I would not believe it. Only thing I knew, he had this blow and had ruptured spleen, and died. Most unusual.

“Q. It is possible for blow to break that spleen?

“A. After having this experience, I should say so; I think so.

“Q. You believe the cause of his death was the lick he received on his back?

“A. Cause of death was ruptured spleen. Then he had a clot in his brain which was direct or indirect cause of his death.

“Q. You believe ruptured spleen was caused by lick on back?

“A. In other words, only way I can account for it. The history of this lick I think it is most probable cause we have in the case.

“Q. You are somewhat in doubt, are you not, as to just what caused Mr. Fox’s death?

“A. No, sir; not in doubt as to the cause of death.

“Q. The cause of his death was ruptured spleen?

“A. Primarily spleen and cerebral hemorrhage, which was due to ruptured spleen.

“Q. You want to tell the Commission that the clot on brain was indirectly caused by spleen ?

“A. Yes, sir; hemorrhage.

“Q. You don’t want to tell the Commission as a positive fact that this ruptured spleen was due to blow?

“A. Only thing I can see. He gave history of this blow, and spleen was ruptured, and he died. I can’t say that it was or was not. Anyway, it is; the only reasonable cause that I can find. I had had post-mortem on him after he died. Couldn’t find other injury.

“Q. Doctor, in your experience as practicing physician, have you run across case of spleen being ruptured by reason of disease?

“A. I never have in my experience. It doesn’t happen.

“Q. Do you know of any cases ?

“A. Personally, no, sir.

“Q. From a medical standpoint, can there not be a ruptured spleen from disease?

“A. It is possible.

“Q. And in the case before the Commission here, is it not possible that Mr. Fox might have had some disease to cause that spleen rupture?

“A. I don’t think so.

“Q. You mean to say this spleen was ruptured by reason of being hit on back ?

“A. As far as I can see, I think so.

“Q. You are somewhat in doubt about it?

“A. Yes, sir.

“Q. You won’t say as a positive fact that Mr. Fox died as result of blow on back?

“A. I wouldn’t say positively. That is only reasonable cause I can find.

“Q. About what size is the spleen ?

“A. Something like this (indicating). Kidney shape.

“Q. About five inches long?

“A. About three and one-half inches long.

“Q. That lies where?

“A. Under the left costal margin, under the diaphragm. Pretty well protected.

“Q. In reference to what we ordinarily call the back, where is the spleen ?

“A. Right back on left side.

“Q. Would you say, doctor, that a light blow which has been testified here by two witnesses on the back of Mr. Fox would rupture the spleen?

“A. As I have' said just before. If one would have asked me before this happened, I would say no; but since I had this experience, then my opinion is different.

“Q. As a matter of fact, it takes quite a blow to rupture a spleen?

“A. Yes, sir; I imagine.

“Q. Would that blow have to be directly over the spleen?

“A. It is possible in his position, being bent over like this against his ribs, it is possible.

“Q. You made examination and performed operation and post-mortem. Had you not known that Mr. Fox had blow on his back, fi> what would you have attributed ruptured spleen ?

“A. I would say that I did not know.

“Q. As a matter of fact, you don’t really know what caused the spleen to rupture?

“A. I do not know.”

Dr. E. H. Miller, who was called in consultation with Dr. Bailey and helped to operate on Fox, testified that he did not see Fox until he was on the operating table and that all that he knows about Fox having received a blow is from the history of the case given him by Dr. Bailey. He testified further as follows:

“O. What was the cause of his death?

“A. Ruptured spleen.

“Q. Do you know what caused the spleen to rupture ?

“A. Just history of case.

“Q. What is history?

“A. Blow on back.”

Dr. J. E. Taylor, the coroner, who was present when Dr. Bailey made a post-mortem examination of Fox, testified:

“O. Just state to the Commissioner what you know about the death of Carroll Fox.

“A. I don’t know anything about it personally. As coroner, I examined a number of witnesses and got a pretty good history of the case.

“Q. As a result of this, doctor, what would you say caused the death of Carroll Fox?

“A. I should say the blow over the kidneys, ruptured spleen, caused his death.

“Q. What caused the spleen to rupture?

“A. I think the blow on the back did it.

“Q. You simply had history that he had blow on back?

“A. Yes, sir. In the absence of any other cause or reason for rupture, I conclude that the Mow was cause of the rupture.

“Q. In the absence of history that he had blow, what would you have said caused the rupture?

“A. I would have said he met with violence of some kind.

“Q. You think rupture of the spleen was due to traumatism solely ?

“A. Yes, sir.”

All the justices sitting, with the exception of Epes, J., are of opinion that as a matter of law the testimony proves a causal relationship between the lick given by Seegar to Fox and his death; and that the Industrial Commission erred in not so holding. Epes, J., is of opinion that the testimony as a whole leaves the causal relationship to' conjecture and surmise, as was held by the Industrial Commission.

Accepting it as concluded that there was a causal connection between the lick struck Fox by Seegar and Fox’s death, all justices sitting are of opinion that such injury arose out of and in the course of his employment, and that the plaintiffs in error are entitled to an award of compensation.

The judgment of the Industrial Commission will be reversed and the cause remanded for further proceedings to be had thereon not in conflict-with the views of this court as herein expressed.

Reversed.  