Bryant Stave & Heading Co. v. White

• Decision Date: 17 December 1956
• Docket Number: No. 5-1095,5-1095
• Citation: 227 Ark. 147,296 S.W.2d 436
• Parties: BRYANT STAVE & HEADING CO., et al., Appellants, v. Herman WHITE, Appellee.
• Court: Arkansas Supreme Court

Page 436

296 S.W.2d 436

227 Ark. 147

BRYANT STAVE & HEADING CO., et al., Appellants, v. Herman WHITE, Appellee.

No. 5-1095.

Supreme Court of Arkansas.

Dec. 17, 1956.

Shaw, Jones & Shaw, Ft. Smith, for appellants.

Mark E. Woolsey, Ozark, for appellee.

MILLWEE, Justice.

This is an appeal from a judgment of the Franklin Circuit Court affirming an award by the Arkansas Workmen's Compensation Commission in favor of the appellee, Herman White, for an 'accidental injury' allegedly sustained by him while employed by the appellant, Bryant Stave & Heading Company, at its plant in Ozark, Arkansas.

The facts are undisputed. Appellee is 44 years old and has been employed in sawmill and other timber work for several years. In June, 1951 he was working for a lumber company when he sustained a back injury diagnosed as a ruptured intervertebral disc for which he was awarded a ten percent permanent-partial disability to the body as a whole by order of the Commission in December, 1951. He recovered sufficiently to resume work shortly thereafter and his back had given him no further trouble when he began work for appellant, Bryant Stave & Heading Co., on March 20, 1954. In the meantime he had worked for another company for about one and one-half years. He worked continuously for the appellant until March 30, 1955, with the exception of a brief period when the mill was closed down.

During his entire employment with the appellant, appellee was engaged in loading stave bolts, with the aid of a helper, by lifting them upon wagons about three to three and one-half feet high. The bolts were from white oak timber about 38 inches long and weighed from 75 to 250 pounds each. In loading the bolts it was necessary that the two men lift some of them higher than their heads. Appellee had been assisting in loading bolts in the usual manner on March 30, 1955, until about 1:30 p.m. when he noticed a pain in his right side, leg and back. He first thought it was merely a 'catch' in his back but the pain persisted and increased in intensity until he reported it to his foreman. The next morning he could hardly get out of bed and his doctor placed him in the hospital where he was 'put in traction' and remained 12 days.

The doctor diagnosed appellee's injury as a narrowing of the intervertebral disc between the fourth and fifth lumber vertebrae and as an aggravation of the pre-existing injury of the same nature received in 1951. He also testified that such aggravation of the pre-existing injury was caused by appellee's work in lifting and loading the stave bolts. Appellee experienced no external, fortuitous accident such as falling, stumbling or dropping a bolt on the day in question and, as far as he could tell, there was no more unusual strain than on other days.

On these undisputed facts the Commission found that appellee's pre-existing injury was aggravated by his performing the usual duties in his customary manner; and that appellee thereby suffered an accidental injury to his back which arose out of and in the course of his employment and resulted in temporary total disability for an indeterminate period. In short, that appellee suffered a compensable accidental injury to his back while performing the usual duties of his employment in his customary manner without any unusual strain or other external fortuitous happening.

For reversal of the circuit court judgment affirming the award made by the Commission, appellant earnestly insists there can be no accidental injury in a workmen's compensation case in the absence of a showing of unusual exertion, strain or other external fortuitous happening which causes or brings about the injury. Now it is settled by our cases that the aggravation of a pre-existing physical condition is compensable if occasioned by accidental injury. Murch-Jarvis Co. v. Townsend, 209 Ark. 956, 193 S.W.2d 310. So the sole issue here is whether a disabling back strain suffered by a claimant while doing his usual work in the customary manner, and without any external fortuitous happening, constitutes a compensable 'accidental injury' within the meaning of the Arkansas Workmen's Compensation Law, Ark.Stats.Cum.Supp. Secs. 81-1301 to 81-1349.

Two sections of our statute are pertinent to the present issue. Sec. 81-1302(d) reads: "Injury' means only accidental injury arising out of and in the course of employment, including occupational diseases as set out in Section 14 [§ 81-1314] and occupational infections arising out of and in the course of employment'. Sec. 81-1305 provides in part: 'Every employer shall secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment, without regard to fault as a cause for such injury; provided, that there shall be no liability for compensation under this Act (§§ 81-1301-81-1349) where the injury or death from injury was solely occasioned by intoxication of the injured employee or by wilful intention of the injured employee to bring about the injury or death of himself or another.' These provisions are precisely the same as those set out in the original Act 319 of 1939.

In reference to the term 'accidental injury' it seems apparent that the adjective 'accidental' refers to and modifies the noun 'injury', and does not refer to the cause of the injury. There is no statutory requirement that the cause of the injury itself must have also been an accident. What the statute says it that the injury itself must have been accidental, that is, unforeseen and unexpected. When the two sections are read together, it is apparent that 'accidental injury' means every injury to an employee arising out of and in the course of his employment except those injuries caused by his intoxication or by his willful intention to bring about the injury or death of himself or another.

The issue presented here has been the source of much controversy and litigation in the courts of this country as well as those in England where compensation acts originated. Before considering our own cases, we deem it appropriate to review these authorities. The terms 'accidental injury' or 'injury by accident' appear in most compensation acts. The English courts have given the term a liberal construction and have consistently held that an employee sustains an injury 'by accident' if either the cause or the result of the injury is unexpected, unforeseen or unintended. Fenton v. Thorley Co., Ltd., A.C. 443 (House of Lords); Clover, Clayton & Co. v. Hughes, A.C. 242, 3 B.W.C.C. 275. In other words, the English courts hold that an unexpected result from usual or customary exertion, even though there is no unexpected or fortuitous cause, constitutes a compensable accident.

A very substantial majority of the courts of this country have adopted and followed the English rule and hold that an injury is accidental where either the cause or the result is unexpected or accidental, although the work being done is usual or ordinary. In Schneider, Workmen's Compensation Text, Perm.Ed., Sec. 1446, it is said: 'It is held in some states that where the ordinary exertion or straining of the employee's usual work causes the unexpected and disabling event or injury or accelerates or hastens its consummation, that in itself constitutes a compensable accident because the injury and disability is due to the employment.' The author lists 21 states, including Arkansas, as supporting this rule and then states: 'In other states disability or injury resulting from the ordinary and usual strain or exertion of the employment, whether great or small, which may accelerate an existing infirmity does not constitute a compensable accident, unless there was an accident in the cause, or an abnormal strain or exertion.' Eleven states are then listed as following the minority view.

The foregoing text statement was published in 1946. An analysis of many later cases cited in the 1956 Pocket Supplement to Sec. 1446 shows that several additional states have since adopted the majority view, while a few of those listed as supporting the minority rule have done an about face on the question. For instance, Arizona was originally listed as supporting the minority rule under the decision in Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017, which was overruled in 1944 in In re Mitchell, 61 Ariz. 436, 150 P.2d 355. Also North Carolina listed as following the minority rule apparently adopted the usual-strain and unexpected result theories in Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231.

In Larson, Workmen's Compensation Law, Sec. 38.00 the various holdings are summarized as follows: 'The 'by accident' requirement is now deemed satisfied in most jurisdictions either if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant's duties. Accordingly, if the strain of claimant's usual...