Davis v. Artley Const. Co.

• Decision Date: 19 May 1944
• Citation: 154 Fla. 481,18 So.2d 255
• Parties: DAVIS v. ARTLEY CONST. CO.
• Court: Florida Supreme Court

18 So.2d 255

154 Fla. 481

DAVIS v. ARTLEY CONST. CO.

Florida Supreme Court

May 19, 1944

Rehearing Denied June 20, 1944.

Appeal from Circuit Court, Leon County; W. May Walker, Judge.

C. N Ashmore and G. T. Whitfield, Jr., both of Tallahassee, for appellant.

Keen &amp Allen, A. Frank O'Kelley, Jr., and Worth Dexter, Jr., all of Tallahassee, for appellee.

CHAPMAN, Justice.

On May 1, 1942 Josh Davis, a colored man, was an employee of the Artley Construction Company and had been unloading lumber from a boxcar. The work was strenuous and the weather on this day was very warm. He was about forty years of age, sixty-seven inches in height and weighed 175 pounds. He had enjoyed usual good health prior to May 2, 1942. Willie Jones, another colored man working in the same squad with Josh Davis, did not hear him complain but observed that Josh's shirt was wet all over and wetter than the shirts of other men working in the car at the time. George Manuel worked in the same squad with Josh but not in the boxcar and he observed Josh at work and did not see him stop or hear him complain about being sick.

Josh Davis testified that on the afternoon of May 1, 1942, when unloading lumber from a boxcar around 7:00 o'clock P.M he became overheated and had a dizzy feeling; he had worked all day; had unloaded three cars of lumber during the day and neither car had windows or other ventilation therein; it was very very hot in the boxcars; it was much warmer in the boxcars than on the outside; he worked for about one hour after he felt the dizzy sensation and then went home; he was sick all night, but on May 2, 1942 (Saturday morning) he returned to work, but fainted or 'fell out' and was physically unable to begin the day's work. He was carried to a doctor and became unconscious. Prior thereto during his entire life he had never been treated by a physician.

It is undisputed by the record that the colored man (Josh Davis) suffered a cerebral hemorrhage, resulting in a paralysis of his left side. Likewise he had syphilis in the tertiary (third) state, and is now permanently disabled. Presented on the record is considerable speculation as to the cause of the disability on the part of physicians called and testifying as witnesses in the case. Counsel for the parties are about in accord on the facts involved, but in the application of the controlling principles of law to the facts in the record different conclusions are reached.

Subsection (19) of Section 440.02, Fla. Stats. 1941, F.S.A. defines accidents thusly:

'(19) 'Accident' shall mean only an unexpected or unusual event, happening suddenly. A mental or nervous injury due to fright or excitement only or disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or narcotic drugs, shall be deemed not to be an injury by accident arising out of the employment. Where a preexisting disease is accelerated or aggravated by an accident arising out of and in the course of the employment, only acceleration of death or the acceleration or aggravation of disability reasonably attributable to the accident shall be compensable.'

The facts involved in the case of City of Lakeland v. Burton, 147 Fla. 412, 2 So.2d 731, were in effect that the claimant was injured or disabled in an accident arising out of and in the course of his employment. He continued to suffer intense pain until some 14 days thereafter the employee was found dead in his bed. The cause of his death was due to a narcotic prescribed by his physician to alleviate the pain caused by the injury. If the narcotic had been taken in quantities as prescribed, death would not have ensued, but an overdose was taken, thereby causing death. We, in part, said: 'It, therefore, follows that the taking of the narcotic was not an independent intervening cause but was the result of the original injury, and the employer and insurance carrier are liable under the Workmen's Compensation Act.'

The facts involved in the case of Orr, Jr., Inc., v. Florida Industrial Commission, 129 Fla. 369, 176 So. 172, are, viz.: Maxwell was employed as a plumber and while engaged in laying sewer pipe, using a hand furnace or blowtorch on a very warm day, the blowtorch or hand furnace subjected the employee to intense heat for several hours when he collapsed. After a short rest he returned to work and collapsed the second time and shortly thereafter died. We held that the injury sustained and subsequent death were compensable.

The facts involved in Protectu Awning Shutter Co. v. Cline, Fla., 16 So.2d 342, were: Cline was a cabinet marker and had heart trouble, accompanied with fainting spells. When a fainting spell occurred, if he reclined or relaxed he would soon recover; if he did not, then he would soon become unconscious. While working for his employer in the course of his employment he had a heart attack and fell on a concrete floor where he had been employed to work. In the fall the employee's head struck the concrete floor, causing a fractured skull. It was contended that the employee could not be compensated because of a pre-existing heart disease. The court below held the injury was compensable and on appeal here was affirmed.

The case of Allen v. Maxwell Co., Fla., 11 So.2d 572, 575, involved a pre-existing injury. The claimant was employed as a night watchman and upholsterer. He went to the basement of the building where employed to start a pump to remove water from the basement, when the lights went out. He fell over a chair and injured a leg. The injury grew progressively worse, resulting in disability during November, 1940. We, in part, said:

'* * * The intention of the Act is to compensate the employee for the loss of earning capacity. If the employee is injured but is able to work, he is not compensated. If he has a pre-existing disease but able to work and is injured while engaged in the course of the employment and a merger of the pre-existing disease and the injury sustained results in his disablement, or the pre-existing disease is accelerated or aggravated by an injury arising out of the course of employment, then it becomes a compensable injury.'

A statute similar to our Florida Compensation Statute here presented, was involved in the case of Crowley's Case, 223 Mass. 288, 111 N.E. 786. Crowley performed arduous work for the City of Lowell, for which he was employed. He was injured in the course of his employment and the testimony developed that Crowley had a pre-existing constitutional disease, which, being dormant, left his ability to perform the work for which he had been employed unimpaired. His injury resulted in paralysis or insanity and total permanent disability.

It was contended that Crowley could not recover under the Workmen's Compensation Act, because of the pre-existing disease of syphilis. The court sustained liability and, in part, said (223 Mass. text 289, 111 N.E. text 787):

'The statute prescribes no standard of fitness to which the employe must conform, and compensation is not based on any implied warranty of perfect health, or of immunity from latent and unknown tendencies to disease, which may develop into positive ailments, if incited to activity through any cause originating in the performance of the work for which he is hired. What the Legislature might have said is one thing, what it has said is quite another thing, and in the application of the statute the cause of partial or total incapacity may spring from, and be attributable to the injury just as much where undeveloped and dangerous physical conditions are set in motion producing such result, as where it follows directly from dislocations; or dismemberments; or from internal organic changes capable of being exactly located. Madden's Case, 222 Mass. 487, 111 N.E. 379.'

The case of Bartlinski v. Northumberland Mining Co., 117 Pa.Super. 437, 177 A. 518, discloses facts, viz.: Claimant on August 20, 1932, was in good health and employed as a minor. One of the coal cars jumped the track and the claimant, with two other men, was engaged in putting the car on the track and in so doing it was necessary to use a wooden lever or rail 10 or 11 feet long. The decedent with his co-fellow employees, took hold of the lever and tried to lift the car and on the third effort was successful. After the strain the claimant...