# C. & B. Construction Co. v. Roach > Supreme Court of Arkansas · April 21, 1952 · 220 Ark. 405 URL: https://www.frixlaw.com/law-library/cases/7813774 ## Case - **Full name:** C. & B. Construction Company v. Roach - **Court:** Supreme Court of Arkansas - **Decided:** April 21, 1952 - **Citations:** 220 Ark. 405; 248 S.W.2d 368; 1952 Ark. LEXIS 718 - **Precedential status:** Published - **Opinion:** Dissent by Ward - **Judges:** Mofaddin, Ward, Wee - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7813774 ## Opinion text Ward, J., dissenting. My dissent to the conclusion reached in the majority opinion is based on the following: First. There is no material conflict regarding the facts and circumstances of deceased’s employment and death, so we might say that all the testimony before the Commission and this court is undisputed. Therefore it is not a question of this court giving to the findings of the Commission the same weight we would give to the findings of a jury on a question of fact. In other words no question of fact is involved. The only question involved is: Do the proven facts bring the ease within the statute ? Second. In my opinion the testimony is sufficient to show a causal connection between the employment or work being done by the deceased and his death, (a) The death certificate shows that death was caused from coronary thrombosis, due to coronary sclerosis, (b) ,Death ensued almost immediately after deceased quit work, and he suffered and complained during the last few hours of work, (c) The doctor said he could not say for sure that exertion “actually produces coronary thrombosis or not, but good authorities believe it may” but he did say “that over-exertion would certainly aggravate it, make it more severe.” This is the vital part of the doctor’s testimony but it does not appear in the majority opinion. We have many times held that exertion need not cause but merely contribute to a heart condition resulting in death. This is an opportune time to discuss another matter which seems to me important and which must be confusing to litigants and particularly to the Commission. The matter I refer to is this: In instances where a claim is based on death resulting from a heart condition aggravated by over-exertion in the course of employment, is it necessary, before the claim can be allowed under our' statute, that there must be some “unusual happening or accident” not ordinarily expected in the usual or normal course of employment? For the sake of clarity and convenience I will refer hereafter to the view that such unusual happening or accident is necessary to recovery as “view A” and the view that there may be recovery where no such unusual happening or accident is shown by the evidence I will refer to as “view B.” The dissenting opinion of Justice Millwee in the recent case of Farmer v. L. H. Knight Co., ante, p. 333, 248 S. W. 2d 111 , and the concurring opinion of Justice McFaddin in the recent case of Baker v. Slaughter, 248 S. W. 2d 106 , both decided April 7, 1952, show very forcefully and clearly that these two “views” are discernible in our former opinions, and both constitute strong arguments for “view B.” Thus it is obvious that there appears to be a conflict, or certainly some confusion, on this point in our former opinions. However, notwithstanding we have in some eases reached conclusions which apparently approve one view and in other cases reached conclusions which apparently approve the other view, this court has never spelled out plainly which view it is adopting. I ’think we should do this. Judging from the language used by the Commission in many cases it would seem that it adheres to “view A.” This may be because the Commission so interprets the statute, or it may be because it thinks this court so interprets the statute, or it may be because it cannot tell what is our interpretation of the statute and it is merely waiting for us to take a definite stand. Certainly litigants and the general public would be interested in knowing exactly what our interpretation is or will be in the future. To my mind sound and practical reasoning does not support “view A” and that to attempt to follow it will perpetuate the confusion. I would like to illustrate by the case of McGregor & Pickett v. Arrington, 206 Ark. 921 , 175 S. W. 2d 210 , where recovery was approved. Apparently, though not clearly, the court’s conclusion was reached under “view A.” If this be true it must "have been because the court found there was an unusual happening or accident. The so-called “accident” consisted in the laborer trying to slide a board into place. This, to my mind, is making a distinction that does not exist in fact. Can it be reasonably insisted that the laborer’s regular course of employment required him only to carry the board up to where it was to be used and that it was no part of Ms regular employment to put the board in place? This situation clearly demonstrates that if we adopt “view A” we will continually be faced with the difficulty, in border-line cases, of deciding what acts of the employee are or are not within the usual course of employment. To some there may be the fear that if we adopt “view B” it will amount to making the employer an insurer. It seems to me that this fear springs from a failure to recognize that there is another barrier which must be surmounted before recovery can be allowed. I refer to the barrier of “causal connection.” Regardless of whether we adopt “view A” or “B” there can be no recovery until there is shown a “causal connection” between the strain or labor [whether it occurs in the usual course of employment or by reason of some accident or unusual happening] on the one hand and the death of the employee on the other. Take the case of moving the plank referred to above, even though “view A” was [presumably] applied still this court had to find that a causal connection existed. Had we applied “view B” we would have still had to find that the same ‘ ‘ causal connection” existed. So, by adopting “view B” this court and the Commission will at least be relieved of making hair-line distinctions between unusual happening and usual course of employment, but will be left with the problem of deciding when there is a “ caushl connection. ’ ’ Naturally many cases will arise which will present border-line questions of “causal connection,” but- these close questions of fact cannot be avoided regardless of which view we follow. At the risk of appearing laborious and tedious I want to try to make my thoughts on the matter as clearly understood as possible. Frankly I am unable to tell which view this court has adopted if, in fact, it has or has meant to adopt either view. Particularly in the earlier cases, it seems to me that we have adhered to “view A,” but in more recent cases it appears that we have chosen “view B. ” Consider again the Arrington case referred to above. There recovery could be approved, logically, only under “view B,” yet language in the opinion indicates a labored effort to bring the case within “view A” though the facts do not justify such a classification. When a case appears before us where the “causal connection” is clear and we feel deeply that recovery should be allowed we should not, in order to reach the desired conclusion, be under the compulsion of creating an ££ accident or unusual happening” when none in fact exists. With border-line cases in mind the question may be asked: By what rule shall we measure and determine “causal connection”? There are two answers to this question. First, as indicated above, it is immaterial to this discussion what the answer is because the same question has to be answered regardless of whether we adopt “view A” or “view B.” Second, a good rule already announced by this court appears in Simmons National Bank v. Brown, 210 Ark. 311 , 195 S. W. 2d 539 , where it was said: “. . . an injury arises out of employment when there is apparent to a rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. “. . . it is enough if there be a causal connection between the injury and the business in which he is employed' — -a connection substantially contributory, though it need not be'the sole or proximate cause.” There are many cases and texts dealing with causal connection, consequently this court may be well guided along that line. The rule described as “view B” is to my mind the better rule. Not only has this court in effect and principle approved this view, as is seen from the dissent of Judge Millwee and the concurrence of Judge McFaddin referred to above, but in my opinion, based on a somewhat careful examination, the weight of authority in other jurisdictions supports this view. See: Lumbermen's Mutual Casualty Co. v. Griggs, 190 Ga. 277 , 9 S. E. 2d 84 ; Williams v. Cities Service Gas Co., 151 Kan. 497 , 99 P. 2d 822 ; Juki v. Hussman-Ligonier Co., 146 S. W. 2d 106 (Mo.); Devlin v. Dept. of Labor and Industry, 194 Wash. 549 , 78 P. 2d 952 ; Hurd v. Republic Underwriters, 105 S. W. 2d 428 (Texas); Barker v. Narragansett Racing Assn., 65 R. I. 489, 17 A. 2d 23 ; Black Forest Ranch Co. v. Garrett, 110 Col. 323 , 134 P. 2d 332 ; Derby v. Swift & Co., 188 Va. 336 , 49 S. E. 2d 417 ; Carney v. Heller, 155 Kan. 674 , 127 P. 2d 496 ; Hemphill v. Tremont Lumber Co., 24 So. 2d 635 (La.); and Christensen v. Dysart, 42 N. Mex. 107, 76 P. 2d 1 . Again I want to emphasize* notwithstanding my views and regardless of what view this court may finally adopt, it appears important in the interest of every one concerned, that we make our position clear and definite, and the sooner the better. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7813774. Public record. Not legal advice.