Birmingham Elec. Co. v. Meacham

• Decision Date: 06 April 1937
• Docket Number: 6 Div. 914
• Citation: 27 Ala.App. 471,175 So. 316
• Parties: BIRMINGHAM ELECTRIC CO. v. MEACHAM.
• Court: Alabama Court of Appeals

175 So. 316

27 Ala.App. 471

BIRMINGHAM ELECTRIC CO. v. MEACHAM.

6 Div. 914

Court of Appeals of Alabama

April 6, 1937

Rehearing Denied May 11, 1937

Certiorari to Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Proceeding under the Workmen's Compensation Law by John Sharp Meacham against the Birmingham Electric Company.Judgment awarding compensation, and the employer brings certiorari.

Writ granted; reversed and rendered.

Certiorari denied by Supreme Court in Birmingham Electric Co. v Meacham,175 So. 322.

J.P Mudd, of Birmingham, for petitioner.

W.A. Denson, of Birmingham, for respondent.

BRICKEN Presiding Judge.

This is a workmen's compensation case in which plaintiff below respondent here, sought to recover damages from the above-named petitioner for injuries he is alleged to have received while working as an employee of petitioner.

The trial was had upon amended count "D" of the complaint and the defendant's answer thereto.After hearing and considering, the trial court made a finding awarding compensation in the amount and according to the terms set forth in the finding of fact and conclusions of law, hereinafter referred to in this opinion.

This case presents a question of both law and fact on petition for certiorari to review the ruling and finding of fact by the trial court.

Count "D" of the complaint referred to reads as follows:

"Amended-Count D.

"Now comes the plaintiff and by leave of the Court for this purpose had and obtained amends the complaint as herein set forth.

"Count D.

"The Petitioner, John Sharp Meacham, claims of the defendantBirmingham Electric Company, a body corporate compensation under the provisions of the Workmen's Compensation Act of 1919, and respectfully shows:

"That on, to-wit: July 27, 1928, the plaintiff was employed by the defendant at Birmingham, Jefferson County, State of Alabama, as a trouble man repairing Servel Refrigerators and that on said date, while plaintiff was engaged in and about the duties of his employment he was injured as follows, in said County and State; Plaintiff was caused to work near Methyl Chloride gas escaping from a container, thereby severely and seriously injuring petitioner's head, neck, back, body, limbs, viscera of the cranial, thoracic, pelvic and abdominal cavities, spine and general nervous system, said injuries being received by an accident arising out of and in the course of his employment by said defendant.That the said Birmingham Electric Company are doing business in the State of Alabama and have had actual knowledge of said injuries, within the meaning of said Workmen's Compensation Act, and of his claims for compensation within the time and in the manner required by law.Petitioner avers at the time of the injury, herein complained of, he was earning approximately $24.00 to $40.00 per week, and his earnings for approximately twelve months previous to said injury had been approximately $24.00 to $40.00 per week.Petitioner avers defendant has declined to pay petitioner compensation under the Workmen's Compensation Act of 1919, and the parties have been unable to agree upon what compensation plaintiff is to receive."

Defendant's answer to the complaint is as follows:

"Answer to Complaint.

"Comes the defendant and for answer to the complaint says:

"1.That it is not guilty.

"2.That the plaintiff did not suffer an accident arising out of his employment with the defendant that would entitle him to any compensation under the Workmen's Compensation Act.

"3.The defendant says that it was not served or given written notice of the alleged accident to the plaintiff within the time required by law for the giving of such notice.

"4.The defendant says that no written notice was given to it, or to any of its authorized servants or employees, of the alleged accident to the plaintiff, within the time required for giving of such written notice.

"5.The defendant denies that plaintiff served notice upon it of said injuries and of his claim for Compensation within the time required by law.

"6.The defendant denies that the plaintiff is entitled to any Workmen Compensation benefits.

"7.The defendant says that the alleged claim is barred by the statute of limitations of one year.

"8.The defendant denies that it had any actual knowledge of the alleged accident suffered by the plaintiff within the time required by the Workmen's Compensation Act of Alabama."

The finding of facts and the court's decree thereon is in words and figures as follows:

"Finding of Facts and Court's Decree

Thereon.

"This cause coming on for hearing before this Court on the 23rd day of September, 1935, on petition of the plaintiff for compensation upon the evidence submitted, the Court finds the following facts, and renders judgment thereon as herein set forth:

"The petitioner, on the 27th day of July, 1928, and prior thereto for a number of months was in the employ of the Birmingham Electric Company, and both the petitioner and said company on said date were subject to the Workmen's Compensation Act of Alabama.As a part of petitioner's regular duties he repaired and serviced electrical refrigerators, a number of which used as a refrigeration agency methyl-chloride gas.On July 27th, 1928, while in the performance of the work assigned him by said employer, petitioner became exposed to a quantity of methyl-chloride gas, which attacked the organs of his body to the extent as hereinafter defined.He had been exposed to said gas previous to this date, but had only noticed the effects sometimes around July 1st, of said year.The disability lasted until August 29, 1929, and during this time, to-wit; fifty-seven weeks, petitioner was totally disabled for thirty-two weeks and 50% disabled for a period of twenty-five weeks.

"Petitioner was approximately twenty-three years old at the time of his injury, and prior to this had been in excellent health.He had no dependents, and his average weekly earnings for twelve months preceding said accident were $25.00 or more per week.

"Neither petitioner nor his physicians understood or were able to correctly diagnose his condition until in July, 1929, at which time petitioner's father applied to the defendant for compensation, at which time the defendant advised petitioner's father to procure the services of an attorney and file suit, in order to prevent the Statute of Limitations from running against said claim.On August 29, 1929, petitioner who had previously been attempting part-time office work in the writing of insurance, and although not feeling entirely well, entered the employment of the Tennessee Coal, Iron and Railroad Company, and after a physical examination, worked in a plate mill as a helper for about a month.He was later transferred as a routine matter to the Shipping Department, where he worked for almost a year.Around October 1930, petitioner had a hemorrhage, which was later diagnosed as tuberculosis, and which caused him further disability, until he was pronounced cured, some two or three years later, after extensive treatment under a number of physicians.

"Following the disability in July, 1928, petitioner applied to the Metropolitan Life Insurance Company for benefits under a Group Policy, and was paid by said Company $10 a week for a number of weeks on a sick claim, which claim was handled and approved by one of the defendant's officers in connection with a Group Policy plan.

"Although there were a number of other employees working on the same type of refrigerators, petitioner was the only one of said employees to suffer any disability of this nature.

"The Court further finds that on the 27th day of July, 1928, the defendant had actual knowledge of the infliction of said injuries upon the petitioner, and that the infliction of said injuries was not a necessary or usual incident to the employment in which petitioner was then employed by said company, but could readily and easily have been avoided by warning petitioner of the deleterious effects of said gas upon the human organism and by taking such precautions as were reasonable and necessary to protect the petitioner from injurious contact with said gas.Wherefore it is the order decree and judgment of this court that petitioner have and recover of the defendantBirmingham Electric Company, a corporation the sum of five hundred thirty-four ($534.00) dollars, unless said sum be paid to the Clerk of this Court within ten days from the date of this judgment, then, in that event, it is hereby,

"Ordered, adjudged and decreed that execution issue out of this Court against said defendant for said amount, together with all costs of this proceeding.

"Ordered, adjudged and decreed on this the 31st day of October, 1935."

The defendant's contentions with respect to the case at bar are as follows:

1.That if the plaintiff suffered any ill effects as a result of breathing methyl chloride gas (and the defendant concedes that there is sufficient evidence in the case to justify the trial court in reaching such conclusion), such effects constituted an occupational disease, and no accidental injury within the meaning of the Workmen's Compensation Law.

2.That whatever ill effects the plaintiff sustained from breathing methyl chloride gas occurred more than a year (that is, from February, 1928 to July, 1928) prior to the date of instituting this suit, viz., July 25, 1929.And under such circumstances, any claim the plaintiff might have had, if compensable, would be barred by the statute of limitations.

3.Inasmuch as the plaintiff himself did not claim or believe that he had suffered any accidental injuries as a result of breathing methyl chloride gas, there was no possibility that the defendant...