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