dissenting.
In respectfully dissenting to the majority opinion, I am convinced the finding of fact and conclusion of law by the full Commission is based on an erroneous assumption of the law and that assumption is: There had to have been an over work load on the deceased to have caused his injury and in the absence of an over work load there could be no compensation. The hypothetical questions propounded to the doctors who testified in this case did not take into consideration the work load the deceased had been carrying prior to his death. Mr. Chapman worked 5 days a week and most of the time from 10 to 15 hours per day for approximately 5 years prior to the date of his death. The record reflects that during the week ending February 13, 1957, Mr. Chapman worked a total of 54% hours; the week ending February 20, 1957, he worked a total of 58% hours; the week ending February 27, 1957, he worked 61% hours; the week ending March 6,1957, he worked 57% hours; the following week on Friday, March 8, 1957, Mr. Chapman worked a total of 15 hours for that day and this was the last day he worked until March 12, 1957, the date of his injury and death. It is admitted that Mr. Chapman visited a doctor one time in 1953 and received treatment for high blood pressure. The record reflects that he did not go back for additional treatment but continued taking the medicine prescribed at that time. It is my contention that the work load carried by Mr. Chapman during his employment contributed to his injury and death.
In my opinion the hypothetical questions propounded to the doctors did not take the prior work load into consideration. The majority opinion relative to this matter is as follows:
“It is undisputed, as indicated, that prior to appellant’s appeal to this Court, nowhere does he appear to have objected to the form or content of these hypothetical questions, nor does he complain that they were not complete and fair.
“In Southwestern Gas & Electric Company v. Halter, 200 Ark. 244, 138 S. W. 2d 793, (Headnote 4) we held:
“ ‘The objection that hypothetical questions put to witnesses who testified as experts did not include all undisputed material facts as they should have done, and included certain other facts which there was no testimony to establish, could not be raised for the first time on appeal.’ ”
The case cited by the majority was not a workmen’s compensation case. The "Workmen’s Compensation Law (Sec. 81-1327 Ark. Stats.) is as follows:
“. . . The Commission shall not be bound by technical or statutory rules of evidence or by any technical or formal rules of procedure, except as provided by this Act . . .”
The Act does not provide in any other section for the formality of objections. Therefore, as I see it, there was no necessity for a formal objection to the erroneous hypothetical questions propounded by the appellees. However, as a matter of law, we said in Ford v. Ford, 100 Ark. 518, 140 S. W. 993: “A hypothetical question to a medical expert must embrace all of the essential undisputed facts, and must not include any fact which the testimony does not tend to establish.”
The questions so propounded dealt merely with the work Mr. Chapman did the morning of his death and not the work load over a long period of time prior to his death. It is admitted that the work that the deceased did on the morning of his death was not unusual or different from that previously performed by him.
This Court, speaking through Mr. Justice Minor W. Millwee, said in a very fine opinion delivered December 17, 1956, Bryant Stave and Heading Company v. White, 227 Ark. 147, 296 S. W. 2d 436, that it was not necessary to show an increased work load to prove an accidental injury under the Arkansas Workmen’s Compensation Act; that if the claimant had a pre-existing condition and there is an injury or breakdown which, though basically brought about by the pre-existing condition, but nevertheless casually connected with the work he was doing, then it is an accidental injury within the meaning of the Act.
All of the doctors admitted that physical exertion is harmful to a person suffering with hypertension or high blood pressure. From the description of the deceased’s work in the record, there can be no doubt but that it required physical exertion. Therefore, for the reasons set out above, I would reverse the finding of the Commission as a matter of law.