{ "id": 2778433, "name": "Mrs. Jose P. SANCHEZ, widow of Jose P. Sanchez, deceased, Helen A. Sanchez, Ida A. Sanchez, Joseph P. Sanchez, Jr., and Thomas R. Sanchez, minor children of Jose P. Sanchez, deceased, Claimants-Appellees, v. BOARD OF COUNTY COMMISSIONERS, BERNALILLO COUNTY, New Mexico, Employer; Mountain States Mutual Casualty Company, Insurer, Defendants-Appellants", "name_abbreviation": "Sanchez v. Board of County Commissioners", "decision_date": "1957-06-20", "docket_number": "No. 6166", "first_page": "85", "last_page": "95", "citations": [ { "type": "official", "cite": "63 N.M. 85" }, { "type": "parallel", "cite": "313 P.2d 1055" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "52 N.M. 105", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579506 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/52/0105-01" ] }, { "cite": "51 N.M. 501", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578133 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/51/0501-01" ] }, { "cite": "58 N.M. 48", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587548 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/58/0048-01" ] }, { "cite": "55 N.M. 361", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582938 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/55/0361-01" ] }, { "cite": "37 N.M. 427", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575430 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/37/0427-01" ] }, { "cite": "55 N.M. 546", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582908 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/55/0546-01" ] }, { "cite": "123 A. 421", "category": "reporters:state_regional", "reporter": "A.", "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "123 Me. 424", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 629549 ], "opinion_index": 0, "case_paths": [ "/me/123/0424-01" ] }, { "cite": "60 A.L.R. 1293", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "opinion_index": 0 }, { "cite": "41 N.M. 513", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571458 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/41/0513-01" ] }, { "cite": "37 N.M. 171", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575340 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/37/0171-01" ] }, { "cite": "292 P.2d 103", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "24 A.2d 392", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "128 N.J.L. 11", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 129852 ], "opinion_index": 0, "case_paths": [ "/njl/128/0011-01" ] }, { "cite": "141 P.2d 343", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "31 A.2d 759", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "130 N.J.L. 107", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 133169 ], "opinion_index": 0, "case_paths": [ "/njl/130/0107-01" ] }, { "cite": "19 A.L.R. 107", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "195 P. 1097", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "69 Colo. 473", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 2704796 ], "opinion_index": 0, "case_paths": [ "/colo/69/0473-01" ] }, { "cite": "42 Ariz. 436", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 5055166 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/42/0436-01" ] }, { "cite": "115 P.2d 350", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "47 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562286 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/47/0127-01" ] }, { "cite": "287 P.2d 996", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "42 N. M. 107", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569656 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/42/0107-01" ] }, { "cite": "60 N. M. 409", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590389 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/60/0409-01" ] }, { "cite": "57 N.M. 747", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843531 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/57/0747-01" ] }, { "cite": "47 N.M. 279", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562302 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/47/0279-01" ] }, { "cite": "45 N.M. 354", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565158 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/45/0354-01" ] }, { "cite": "60 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590366 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/60/0101-01" ] } ], "analysis": { "cardinality": 1218, "char_count": 26191, "ocr_confidence": 0.711, "pagerank": { "raw": 4.1252937885047986e-07, "percentile": 0.9105891887905434 }, "sha256": "f4561d8e9f25989834af7c27d62161f94be408bba4b96cf1e1bc1e83c0e890e1", "simhash": "1:e0bed9ce0d4abfb1", "word_count": 4484 }, "last_updated": "2023-07-14T17:04:51.657225+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LUJAN, C. J., and McGHEE and COMPTON, JJ., concur.", "KIKER, J., not participating." ], "parties": [ "Mrs. Jose P. SANCHEZ, widow of Jose P. Sanchez, deceased, Helen A. Sanchez, Ida A. Sanchez, Joseph P. Sanchez, Jr., and Thomas R. Sanchez, minor children of Jose P. Sanchez, deceased, Claimants-Appellees, v. BOARD OF COUNTY COMMISSIONERS, BERNALILLO COUNTY, New Mexico, Employer; Mountain States Mutual Casualty Company, Insurer, Defendants-Appellants." ], "opinions": [ { "text": "SADLER, Justice.\nThe basic question for our determination on this appeal is whether there is substantial evidence to support the jury\u2019s verdict that the husband of plaintiff (appellee) suffered an accidental death arising out of and in the course of his employment by defendant-employer. The latter as an appellant before this Court challenges as erroneous the judgment entered on the verdict so returned at the trial.\nThe decedent, a man of goodly size, weighing more than 200 pounds, reported for work on a new job as a day laborer, at the commodity warehouse of his employer, the Board of County Commissioners of Bernalillo County, on the morning of July 18, 19SS. The work in hand was. the unloading from a railway box car on a siding opposite the warehouse of boxes of packaged cartons of powdered milk and stacking them inside the warehouse.\nEach case of the powdered milk weighed 59ji pounds and the process of removing them from the box car, separated by several feet from the open door of the warehouse, required the services of a work crew of, at least, four men. Two of them, operating from inside the box car, would place the boxes on a tilted conveyor on which the boxes would slide toward the open door of the warehouse. As each box arrived opposite the door, the two workmen waiting inside the warehouse would stoop, over, each pick up a box and carry it a short distance away where the boxes were deposited in stacks to await use. Both in receiving and depositing the cases, some stooping or bending was required, the distance required in the process progressively decreasing as the size of a stack grew with the adding of boxes.\nThe decedent, along with his fellow workmen, began the job of picking up, each man to a box, and carrying them a short distance, where the cases were stacked inside the warehouse. Decedent had thus moved three or four boxes when, attempting to pick up still another, he was \u25a0seen by the foreman to falter and fall over \u2022on his side. Some of his fellow workmen, including the foreman, gathered around and offered help. At first, the decedent complained of being sick, thought he had eaten something that had disagreed with him, was pale and sweating, and called for a drink of water which one of his co-laborers brought him.\nHe was soon removed to a pile of sacks where he lay down for a time and then was carried to his car, parked nearby, in which he rested the greater part of the morning. After being conducted to his car, upon visits to him by some of the employees, he was found to be vomiting, continued pale and was still sweating. About 11:30 a. m., a fellow workman drove him home in decedent\u2019s car. En route he complained of a pain in his head and chest and continued to sweat and remained pale. He entered his home with his eyes closed, moaning. After getting him in his home, he commenced to turn blue, whereupon his wife had him removed to the hospital. Upon arrival there he was found to be dead.\nThe decedent was twice married, being the father of 11 children by his first wife from whom he was divorced in 1942. The surviving wife, plaintiff herein, and the four minor children by her, were found to be dependents of decedent and the beneficiaries of whatever compensation should be adjudged due them by reason of his death.\nDuring his lifetime the decedent was employed as a day laborer by various employers. Much of the time he was unemployed. In 1949, he got a job as a janitor for St.Joseph\u2019s Hospital in Albuquerque, where he worked for about a year, then quit. Next, we find him employed on a road gang by county highway department. This was in 1951. He continued in this employment until February, 1954, when he was laid off.\nRemaining idle for a few months, he next shows up with a job with City of Albuquerque as special patrolman at a school crossing for $110 per month. School out, he worked as a gardener in the city parks, again drarving $110 per month. Upon the reopening of school in the fall of 1954, he resumed his employment as special patrolman at a school crossing. This job occupied him until school was- out in spring of 1955, at which he continued to draw as salary the sum of $110 per month. He remained out of work from time school was out in spring of 1955 until he secured the job in which he met his death, soon after entering upon his duties on the morning of July 18, 1955.\nApparently, the decedent who had lived the outdoor life of a rancher prior to moving to Albuquerque in 1949, had enjoyed good health until August of the year, 1952, when he began to complain of headaches and dizziness. At this time his wife was employed at St. Joseph\u2019s Hospital, and being personally acquainted with several doctors, she made appointments for him with several of them, at least, two of whom thought he had some heart trouble. The wife, plaintiff herein, being somewhat concerned, possibly by reason of knowledge acquired during her employment at a hospital, made an appointment with a fourth physician, a heart specialist, for September 21, 1952.\nThis physician, Dr. John Dettweiler, testified at the trial that on his first examination of decedent he discovered he had suffered from a myocardial infarction. The effect of such attacks, so Dr. Dettweiler testified, is permanent, and that patients who had had such attacks, ordinarily, are kept from doing any work involving manual labor. It thus was established by the testimony of the heart specialist that at the time of his fatal attack, the decedent was a sufferer from a pre-existing heart ailment which had continued for approximately -three years prior thereto, if not longer.\nWith a background in the facts as recited above, we are brought face to face with the critical issue whether the facts surrounding the death of decedent afford a basis for the jury\u2019s verdict. In other words, is there substantial support in the evidence for the jury\u2019s finding that the death of decedent resulted from an accidental injury suffered in the course of his employment and arising out of it?\nIt cannot be questioned but that there is ample evidence in the record the decedent, at time he commenced work for his. employer, to be stricken within the first hour, if not half hour, of such employment, suffered from a pre-existing heart ailment. Dr. Dettweiler, the heart specialist, who had examined him in September, 1952, and discovered he was then suffering from a prior heart ailment, was. asked a hypothetical question describing the facts surrounding decedent\u2019s attack, \u2014the lifting in progressive sequence of three or four boxes weighing around 50' pounds (actually shown to be 59}/\u00a3 pounds),, a physical collapse followed by a fainting condition, sweating, vomiting, and ending in death the same day, \u2014 gave it as his-unqualified opinion that it was \u201cmost likely\u201d the exertion of lifting the boxes, precipitated the heart attack from which, death occurred.\nLikewise, Dr. Levin, an expert medical witness, upon facts in evidence embraced, in a hypothetical question, gave it as his. opinion that decedent had suffered a coronary occlusion (a heart attack) on the day of his death and that exertion from lifting the boxes was the inducing cause of\" the attack which resulted in his death.. The jury, following instructions from the-court touching the issue, returned into-court a general verdict and special verdicts, in answer to interrogatories submitted, as follows:\n\u201cVerdict\n\u201cWe, the Jury, find the issues in favor of the Claimant and against the Defendants.\n\u201cs/ Harold O. John, Foreman.\n\u201cSpecial Interrogatory No. 1\n\u201c1. Did Jose P. Sanchez die from \u25a0an injury, arising out of and in the \u25a0course of his employment?\n\u201cAnswer Yes or No Yes\n\u201c2. Was the death of Jose P. San\u25a0chez proximately caused hy an accident arising out of and in the course \u25a0of his employment?\n\u201cAnswer Yes or No Yes\n\u201c3. If your answer to Special Interrogatory No. 2 is in the affirmative, please state the accident which proximately caused said death and arose out and in the course of his \u25a0employment.\n\u201cAnswer Exertion caused by lifting.\n\u201cs/ Harold O. John, Foreman\u201d\nIt was upon such verdicts that the trial court rendered judgment in favor and for the benefit of plaintiff and her four minor children for the recovery, from defendants of $24 per week for 550 weeks, commencing on July 18, 1955, together with an award of attorney\u2019s fees in the sum of $2,250 for benefit of her attorneys, plus funeral expenses in the sum of $250. It is this judgment of which the defendants complain before us, directing their basic challenge to same upon the ground there is no substantial evidence to show the decedent suffered other than an ordinary death from natural causes. This is but another way of saying the plaintiff failed to show by substantial evidence that the decedent\u2019s death resulted from an accident arising out of and in the course of his employment.\nIf, however, in the course of his employment the decedent hy exerdon strained himself to the point a pre-existing heart ailment was reactivated, resulting in a blockage, or occlusion, we find present every element necessary to denominate his injury accidental. Christensen v. Dysart, infra. Certainly, it was \u201cunlooked for,\u201d \u201cunintended,\u201d and \u201cunexpected.\u201d Had it been otherwise, the workman\u2019s death would assume a suicidal aspect. His death was reported by the employer to the defendant insurer as an accident, a fact entitled to legitimate consideration by the jury in determining whether it was so or not. Gilbert v. E. B. Law & Son, Inc., 60 N.M. 101, 287 P.2d 992. We have no difficulty in seeing in the death involved a compensable accidental injury. Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342; Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333; Gilbert v. E. B. Law & Son, Inc., supra; Hathaway v. New Mexico State Police, 57 N.M. 747, 263 P.2d 690; Teal v. Potash Co. of America, 60 N. M. 409, 292 P.2d 99.\nCounsel for the defendants argue vigorously that a heart attack which results from exertion expended by a workman in performing his usual and ordinary duties; under usual and ordinary circumstances of his work, may not be made the subject of a workmen\u2019s compensation award. It is their view that in a death under the circumstances here shown, the injury must result from some unusual, extraordinary or emergent situation to give it character as an accident. And they are able to find statements in one or more of our earlier cases, such as Christensen v. Dysart, 42 N. M. 107, 76 P.2d 1, and Hathaway v. New Mexico State Police, supra, from which, unexplained, at least, they may draw some measure of comfort. However, it seems now too well settled to be open to controversy by decisions since Christensen v. Dysart, supra, and decisions both before and since the Hathaway case, supra, that as said in Gilbert v. E. B. Law & Son, Inc., supra 60 N.M. 101, 287 P.2d 996:\n\u201c * * * It is not necessary that a workman be subjected to an unusual or extraordinary condition, not usual to his employment, for an injury sustained to be termed an accidental one under our law. Webb v. N. M. Pub. Co. and Barton v. Skelly Oil Co. [47 N.M. 127, 138 P.2d 263], both supra.\u201d\nSee, in addition, Stevenson v. Lee Moor Contracting Co., supra; Webb v. N. M. Pub. Co., supra, and Teal v. Potash Company of America, supra.\nIn the Stevenson case, supra, we quoted extensively from the earlier English case of Fenton v. Thorley, [1903] A.C. 443. After a lengthy review of the decisions including Fenton v. Thorley, we said:\n\u201cWe are satisfied with the conclusions of these courts, and hold that \u2018injury by accident\u2019 means nothing more-than an accidental injury, or an accident, as the word is ordinarily used. It denotes \u2018an unlooked for mishap,, or an untoward event which is not. expected or designed.\u2019 \u201d [45 N.M. 354, 115 P.2d 350.]\nIt is interesting to note that in the Stevenson case, supra, this court rejected the argument renewed in the case at bar by defendants that the term \u201cinjury by accident\u201d means there must always be an accident separate and apart from the injury, and rejected as well the leading case cited to support such an interpretation, namely, Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017. After adverting to- the fact that Colorado Supreme Court, from which state in the Stevenson case it was said we-originally adopted our Workmen's Compensation Act, had prior thereto in Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097, 19 A.L.R. 107, favored a construction in conformity with that given the Act in Fenton v. Thorley, we went on to say although that fact alone would justify our following their construction, \u201cyet being \u2022satisfied that such construction is gramatically correct; and as it is more in,accord \u25a0with the spirit of the Workmen\u2019s Compensation Acts, it should be followed by us,\u201d adding:\n\u201cSuch is the weight of authority in this \u25a0 country.\u201d\nWe also find this significant language in \u25a0this court\u2019s opinion in the Stevenson case, :supra, to wit :\n\u201cWhen an injury results from some fortuitous happening, such as the breaking of machinery, explosions, collisions, etc., the accidental nature has never been questioned. But in cases where there was no accident separate and distinct from the injury that caused it, the courts are not in accord. Such .are strains causing back injuries, ruptures, blood clots, hemorrhages, etc.; \u2022ordinarily the unintended result of an intentional act of the person injured. These injuries are also held compensa \u25a0ble by all courts so far as we are advised, when received in the course of the workmen\u2019s employment, since Fen-ton v. Thorley.\u201d (Emphasis ours.)\nIt is true enough, as we are reminded Iby plaintiffs\u2019 counsel in the Stevenson case, \u25a0the court found it unnecesary to determine there whether a workman injured while performing his labor under ordinary conditions of his employment is compensable under our Act.\nIn the Webb case, the court again in an exhaustive opinion reviewing cases under our own and other Acts, as counsel for plaintiffs point out, answered the question left unanswered by the Stevenson case by squarely holding an injury could be \u201caccidental,\u201d though suffered while the workman was performing his usual and ordinary duties, under usual and normal conditions, provided only there appear in the facts attending the injury the \u201cunexpected,\u201d \u201cunlooked for\u201d and \u201cunintended\u201d mishap which gives it character as such. In this very case, we cited approvingly Cavanaugh v. Murphy Varnish Co., 130 N.J.L. 107, 31 A.2d 759, on facts not unlike those here present. We said [47 N.M. 279, 141 P.2d 343]:\n\u201c * * * The workman was unloading cartons of paint from a truck two days after he was employed. While lifting one he felt a pain in his chest and began to cough. In a few minutes he suffered a lung hemorrhage and was found upon examination to have tuberculosis. The court stated it as an established fact in the case that the employee was suffering from tuberculosis at the time of commencing his employment. The contention was that, to be a compensable accident, the strain suffered must have been the result of an unusual effort, and not one ordinarily required in the performance of his usual work. The court cited Molnar v. American Smelting & Refin. Co., 128 N.J.L. 11, 24 A.2d 392, 393, in which it was held that it was not necessary to show unusual effort or exertion, although it did appear in that case that 'the degree of exertion is of no consequence, so long as the performance of the required work caused a strain upon the heart.\u2019 \u201d\nAnd, finally, in our own somewhat recent case of Teal v. Potash Company of America, supra, a heart case, after pointing out the inconsistency of holding accidental an injury resulting from strain in meeting an emergent situation, suddenly encountered, and denying it where caused by strain incident to exertion to the point of exhaustion in the performance of one\u2019s ordinary duties in the usual way, we said:\n\u201cThere would be neither consistency nor logic in such contrary views. After all, it is the physical effort employed, the straining of oneself to the point of exhaustion, in either case, which produces the 'unintended,\u2019 the 'unexpected,\u2019 and the \u2018unlooked for\u2019 result enabling the courts to characterize the injury or death as accidental. The physical exertion producing the strain on the heart is the same in either case and, obviously, had the workman exerting known or expected the result which followed, he would never have so exerted himself.\u201d [60 N.M. 409, 292 P.2d 103.]\nAs indicated above, counsel for defendants place much reliance not only upon Christensen v. Dysart, supra, and as well on the Hathaway case to support their claim the injury, to be accidental, must have been the result of unusual exertion and could' not arise where the workman was performing his normal duties in a usual and ordinary fashion, even though resulting from, exertion and strain. We agree with counsel for plaintiffs that in so far as the Christensen case so holds it has been superseded by later decisions, particularly the Webh case.\nThe Hathaway case is somewhat-more difficult to explain. Apparently, in-that case we did rely upon the unusual exertion factor and, understandably, since-that was an \u201cunusual exertion\u201d case. Being so we, of course, did not need to go further than to apply the universal rule applicable in such cases, as demonstrated by-Christensen v. Dysart. There was thus no-necessity to place reliance on the rule of the Webb case which, apparently, either for that reason we did not notice, or as seems-more likely, simply overlooked. Certainly,, when the trial court in the Hathaway case instructed the jury:\n\u201cIn order for you to find for the claimant herein, you must find by a preponderarme of the evidence that his disability, if any, occurred as a result of an untoward event occurring during the performance of his duties as Captain of the State Police Force. You must find some unusual, exceptional or extraordinary exertion or other activity performed by the Claimant while engaged in his duties as such captain of the State Police Force. The question of a pre-existing condition has otherwise been explained to you by other instructions.\u201d\nit was operating right in the teeth of the doctrine of the Webb case in this particular. The jury having found for the plaintiff, the foregoing instruction was not attacked on appeal and thus became the \u201claw of the case.\u201d Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276; Bell v. Carter Tobacco Co., 41 N.M. 513, 71 P.2d 683.\nAn interesting aftermath to the Hathaway case is to be found in a case tried in the United States District Court for the District of New Mexico, Tomlin v. Stewart Drilling Co. (No. 3238) on the civil docket of said court (verdict rendered January 17, 1957). In that case the wife claimed compensation for the death of her husband by a heart attack incurred while performing his usual duties as a derrick man on an oil well drilling rig. Judge Waldo H. Rogers (the same judge who sat as a state district court judge in the trial of the Hathaway case, supra, and instructed the jury that in order for a heart attack to be compensable that it be caused by unusual strain or exertion), gave the following charge to the jury, in the federal case above, applying New Mexico law:\n\u201cYou are instructed that an accidental injury may be received by a workman while performing his labor under the usual and ordinary conditions of his employment.\n\u201cYou are instructed that where the duties of the employment call for a quality and quantity of exertion which actually is the immediate precipitating factor to the death of a workman by a heart attack, it is compensable.\u201d\nOne of the leading cases cited in an annotation which follows the report of same in 60 A.L.R. 1293, namely, case of Brown, 123 Me. 424, 123 A. 421, 422, 60 A.L.R. 1293, involved a heart case, due to shoveling snow even though similar to work performed by him on other days, was a compensable injury. Meeting the contention that the workman\u2019s injury could not have been accidental since he was only doing his usual work, the court said:\n\u201cIf a laborer performing his usual task, in his wonted way, by reason of strain, breaks his wrist, nobody would question the accidental nature of the injury. If instead of the wrist it is an artery that breaks, the occurrence is just as clearly an accident.\u201d\nWe can well realize how the employer .and insurer in a case of this kind, when the workman is stricken so soon after taking up the performance of his duties, literally almost in the act of doing so, may well \u2022and, understandably, be disposed to question the validity of the claim. They cite \u25a0several possibilities which might have caused the death, other than the one which .actually did, according to the jury\u2019s finding, such as the eating of a heavy meal, or watermelon, the day before. Of course, the \u25a0decedent might have suffered a fatal heart attack as he got out of his car, or walked from it toward his place of work. In such \u25a0event, liability would not exist, obviously.\nBut it was not the duty of the claimants to exclude all other possibilities which could and might have caused death. They were only called upon to prove the most probable cause. Clower v. Grossman, 55 N.M. 546, 237 P.2d 353. That they did so in a manner which fully satisfied the jury, by producing substantial evidence of the cause of death as found, we entertain no doubt. If, instead of death from strain on the heart, the decedent had died within the same period after starting to work by a 'blow on the head from falling debris stored in the warehouse, who would question the accidental character of his death? If, as the jury found, the decedent died from a heart attack caused by the strain imposed by. lifting four 59j4-pound boxes over a fifteen-minute period, it was no less accidental because occurring so soon after commencing work.\nIt is urged upon us by counsel for defendants that the trial court erred in failing to give its requested instructions Nos. 15 and 25, both dealing with the proposition that the Workmen\u2019s Compensation Act does not make the employer an insurer of the employee against injury or death during the hours of employment and that under the law it is not every injury that is compensable. We have examined the instructions requested in the light of those given, and think the court did not err in refusing these requests. See Schultz v. Young, 37 N.M. 427, 24 P.2d 276; Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047; Jones v. Citizens Bank of Clovis, 58 N.M. 48, 265 P.2d 366. What we have said touching error in the instructions just mentioned applies with equal force to claims of error relative to action on other requested instructions at the trial. We see no error in view of the instructions given.\nComplaint is made, also, that error was committed in connection with the submission to the physicians, Doctors Dettweiler and Levin, of hypothetical questions. First, it is claimed the trial court should not have permitted the propounding of such questions until all the evidence upon which they were based had been introduced. When the objection on this ground was first interposed, counsel for plaintiff, mindful of the rule that a hypothetical question could not be based upon facts not in evidence, assured the court that such evidence would be produced before the trial ended. Thus assured the court permitted the questions to be propounded.\nWe see no error in the ruling of the trial court in this connection. Nor are we persuaded by the argument of counsel for defendants that the plaintiffs did not fairly comply with the assurances given the court by producing testimony to meet the test imposed upon them by the court. A careful review of the evidence bearing on this claim of error satisfies us the plaintiffs complied, substantially, with their promise to the court in this behalf.\nNor do we think there was any abuse of the trial court\u2019s discretion in permitting plaintiffs to put on as rebuttal witnesses the minor children touching the issue of dependency that had been injected by cross-examination of the mother of the minors, one of the plaintiffs, and the direct examination of the . witness, Josephine Corey. The same observation applies, viz., no abuse of discretion, as to the court\u2019s refusal to permit cross-examination of the minor children as witnesses on matters not germane to their direct examination. See State v. Wilcoxson, 51 N.M. 501, 188 P.2d 611; Lillibridge v. Coulter, 52 N.M. 105, 192 P.2d 315.\nOther errors are argued touching basis for computing compensation payments, form of the judgment in failing to provide for contingencies which from time to time might, and some of which would, affect the amount or duration of compensation, amount of attorneys fees and costs. We have given careful consideration to all these claims of error and believe none of them is meritorious. It would profit neither the bench nor the bar for us to take up and discuss each of such claimed errors in detail and we see no occasion to do so.\nWe have been asked by counsel for plaintiffs (appellees) to award attorney\u2019s fees in their favor in this court for services rendered on the appeal. Considering the whole matter, the labor expended and the results achieved we think a reasonable allowance on this account would be the sum of $750, for which an award is hereby made.\nIt follows from what has been said that the judgment of the trial court is correct and should be affirmed.\nIt is so ordered.\nLUJAN, C. J., and McGHEE and COMPTON, JJ., concur.\nKIKER, J., not participating.", "type": "majority", "author": "SADLER, Justice." } ], "attorneys": [ "Simms, Modrall, Seymour, Sperling & Roehl, Thomas J. Smiley, Albuquerque, for appellants.", "Smith, Kiker, Spiess & Beasley, Irving E. Moore, Albuquerque, for appellees." ], "corrections": "", "head_matter": "313 P.2d 1055\nMrs. Jose P. SANCHEZ, widow of Jose P. Sanchez, deceased, Helen A. Sanchez, Ida A. Sanchez, Joseph P. Sanchez, Jr., and Thomas R. Sanchez, minor children of Jose P. Sanchez, deceased, Claimants-Appellees, v. BOARD OF COUNTY COMMISSIONERS, BERNALILLO COUNTY, New Mexico, Employer; Mountain States Mutual Casualty Company, Insurer, Defendants-Appellants.\nNo. 6166.\nSupreme Court of New Mexico.\nJune 20, 1957.\nSimms, Modrall, Seymour, Sperling & Roehl, Thomas J. Smiley, Albuquerque, for appellants.\nSmith, Kiker, Spiess & Beasley, Irving E. Moore, Albuquerque, for appellees." }, "file_name": "0085-01", "first_page_order": 117, "last_page_order": 127 }