
    Mrs. Rose Ella Powell PRICE, Plaintiff and Appellee, v. HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Defendant and Appellant.
    No. 917.
    Court of Appeal of Louisiana. Third Circuit.
    July 15, 1963.
    Stafford & Pitts, by Grove Stafford, Jr., Alexandria, for defendant-appellant.
    Gravel, Sheffield & Führer, by Leonard Führer, Alexandria, for plaintiff-appellee.
    Before TATE, SAVOY and CULPEP-PER, JJ.
   CULPEPPER, Judge.

This is a suit for workmen’s compensation death benefits brought by the widow of Mr. Joe Price, individually and on behalf of her two minor children. Plaintiff alleges that Mr. Price died as a result of a heart attack, causally connected with his work on a right of way crew of the Louisi-though the wood loading during the noon hour may have played some part, it was the strenuous tree chopping which Mr. Price was doing at the time he suffered the attack, which was the principal cause of the coronary occlusion.

Dr. Shea Halle, a specialist in internal medicine, called by the plaintiff, testified that although the entire day’s activities must be considered, he thought the work which Mr. Price was doing at the time of the attack did contribute.

Under this expert medical testimony, we think plaintiff has proved by a preponderance of the evidence that the axe work being done by Mr. Price contributed to his fatal heart attack. Long ago the courts firmly established the principle that the employer must take the worker as he finds him. Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L.R.A.1918F, 862. The effect of this rule of law is that if the work connected accident combines with other causes, for which the employer is not ■responsible, to produce the ultimate disability or death, the employer is nonetheless responsible for workmen’s compensation. See the discussion in Malone’s Louisiana Workmen’s Compensation Law & Practice, Section 231 and 232. Since the landmark case of Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625, this principle has been applied to many heart attack cases.

Thus, in the instant case, all the ■plaintiff had to prove in order to show causal connection, was that the strenuous work being done by Mr. Price at the time of his heart attack was a contributing cause thereto. The pre-existing heart disease, the hearty lunch, the failure to take the customary noon rest and the loading of the fire wood may likewise have been contributing causes, but this does not prevent plaintiff’s recovery. See Brian v. Employers Casualty Company, 111 So.2d 161 (2nd Cir. App.1959) and the many cases cited therein.

The lower court denied plaintiff’s ■demand for penalties and attorney’s fees. By answer to the appeal plaintiff reurges this demand. Like the trial judge, we are unable to conclude that the defendant was arbitrary or capricious in refusing to pay death benefits. Defendant’s theory of the case was supported by at least one highly qualified expert medical witness, i. e., Dr. Freedman. We think this sufficiently supports the defense to remove it from the realm of arbitrariness.

In her answer to the appeal, plaintiff likewise contends the district judge erred in refusing to consider Mr. Price’s subsistence allowance of $4 per day as part of his weekly wage. Citing Malone’s, Louisiana Workmen’s Compensation Law & Practice, Section 329, plaintiff contends this subsistence allowance was a fixed amount which constituted an economic gain to the employee and, as such, was part of the his weekly wage. Defendant contends it was simply a reimbursement for meals and living expense when Mr. Price worked away from home and therefore should not be computed as part of the weekly wage. See Barrilleaux v. Hartford Accident & Ins. Co., La.App., 12 So.2d 611.

Unfortunately, the only evidence in the record regarding this subsistence allowance is the testimony of Mrs. Price as follows:

“Q Did he receive any other extra benefits that was paid for subsistence?
“A Yes, sir.
“Q What did he receive for subsistence pay?
“A $4.00 a day.”

The record does not show whether Mr. Price received this “subsistence” regardless of whether he worked away from home, or whether he received it only as a reimbursement for extra living costs made necessary by away from home work. We think the burden was clearly on the plaintiff to prove that the subsistence allowance was of such a nature that it must be considered a part of Mr. Price’s weekly wage. Plaintiff has failed to meet this burden.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant.

Affirmed.  