Consolidated Coal Co. v. Dill

• Decision Date: 09 May 1946
• Docket Number: 6 Div. 414.
• Parties: CONSOLIDATED COAL CO. v. DILL.
• Court: Alabama Supreme Court

26 So.2d 88

248 Ala. 5

CONSOLIDATED COAL CO. v. DILL.

6 Div. 414.

Supreme Court of Alabama

May 9, 1946

Kingman C. Shelburne and Davies & Mead, all of Birmingham, for appellant.

Pennington & Tweedy, of Jasper, for appellee.

By the amended complaint plaintiff claims compensation 'for that, heretofore, on, towit, Sep. &amp October, 1944, and while he was performing the duties of his employment and using certain materials in and about said mine called nips, a starting box which was used to operate the coal cars from out of said mine instead of said nips burst and almost destroyed the sight of petitioner's eyes. Petitioner alleges that he was working in and around said nips that conveyed the coal from the loader to the mine haulage-way, and that he was working in and around said nips and the said nips arced and exploded and burned his eyes. He alleges that he received the said injury in the course of his employment while working for the defendant in and about said mine. That he was injured in the course of his duties. That he has a wife and one child, and that he was making to-wit $48.00 per week at the time of said injury. That the defendant has had knowledge or notice of said accident, and has refused to pay petitioner anything. Deft. was operating coal mines at Bankhead, Ala., where Pltf. was injured &amp Pltf. lives at Jasper R 2 Ala. all in Walker County Ala.'

GARDNER Chief Justice.

Proceedings under the workmen's compensation statute (Chapter 5, Title 26, Code 1940) by A. M. Dill against Consolidated Coal Company. From a judgment awarding compensation, the employer Coal Company seeks review by certiorari.

In proceedings of this character compliance with technical rules of pleading is not required. Ex parte Coleman, 211 Ala. 248, 100 So. 114; Sloss-Sheffield Steel & Iron Co. v. Watts, 236 Ala. 636, 184 So. 201; Randle v. Dumas, 229 Ala. 396, 157 So. 218; Alabama Concrete Pipe Co. v. Berry, 226 Ala. 204, 146 So. 271; Ex parte National Pipe & Foundry Co., 213 Ala. 605, 105 So. 693.

So considered, we think it clear enough the amended complaint was sufficient and demurrer thereto was overruled without error. The complaint sufficiently discloses the employee Dill's injury was received by an accident 'arising out of and in the course of' his employment. Though that exact language may not be used in the complaint, yet the allegations therein contained that his injuries were received 'in the course of his employment while working for defendant in and about said mine' and that he 'was injured in the course of his duties,' suffice to meet all needful requirements as to pleadings.

There is criticism that the exact date of the accident and injury is not given. The injuries were suffered, as alleged, in September and October, 1944. The proof shows the employee to be an illiterate man. He cannot read or write, and his testimony as a witness was not any too clear. His injuries were to his eyes, to a large extent caused from the glare of electric lights too close to his face, and covering a period of some time, as indicated by these dates. The fact that he could not better name the exact time is thus explained and excused. And it is clear enough, under these peculiar circumstances, he is not to be denied compensation for a failure to be more specific than the facts warranted.

That defendant was given sufficient notice in writing is undisputed. And, indeed, the proof is ample that Dill more than once called the employer's attention to the situation that was injuring his eyes, but without effect.

Upon the merits the Coal Company insists that the injuries to Dill's eyes were not due to an accident within the definition of our statute, as found in Sec. 262(i), Title 26, Code 1940, citing Birmingham Elec. Co. v. Meacham, 234 Ala. 506, 175 So. 322; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Young v. Melrose Granite Co., 152 Minn. 512, 189 N.W. 426, 29 A.L.R. 506; Travelers Ins. Co. v. Shepard, 155 Fla. 576, 20 So.2d 903; Jackson v. Southern Kraft Corp., La.App., 183 So. 135; Industrial Comm. of Ohio v. Russell, 111 Ohio St. 692, 146 N.E. 305.

These authorities have been examined, but we think they are each distinguishable from the instant case. This question of 'accident' within the meaning of our statute was given full discussion, with much citation of authority, in Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288, and we are of the opinion the ruling in the Pow case fully sustains the conclusion reached by the court below.

As to the facts little need be said. Dill worked at a 'starting box' operated by a switch or lever, used to pull the coal cars. This starting box 'blowed up,' to use Dill's language. The fire would 'stream up' and 'if you didn't watch, the juice would knock you down.' Sparks would fly out, and a small piece of copper got into Dill's eye, necessitating treatment. Dill made complaint to the 'boss men' from 'time to time that the switch should be fixed.' It was the failure to fix the switch, as we read the record, that necessitated using what is called 'nips,' wires with hooks, with which Dill would touch the rather heavily charged electric wire so as to produce the necessary current. It was this character of operation that caused the electric arc so close to Dill's face as to burn his eyes.

Witness Alexander was asked: 'When they had the switch, they didn't have to use the nips?' To which he replied: 'No, they used the lever. Didn't have to hook it up to the naked wire.' The accident of the starting box blowing was therefore the initial cause of the trouble, one doubtless which could and should have been promptly remedied. And the electric arc, to which Dill was thus exposed as a consequence of the employer's failure to remedy the defect, was not the risk one working in that position was expected to take.

But we forego further discussion. It is clear enough there was evidence justifying the finding of the trial court upon the question of liability.

The court found the employee Dill sustained permanent partial disability to both eyes to the extent of twenty per cent that he had a wife and one child eleven years old, and that his average earnings were $35 per week. There was proof sustaining these findings. It would be assumed that the lump-sum payment, as provided by Sec. 299, Title 26, Code 1940, was pursuant to the agreement of the parties (Edwards v. Doster-Northington...