General Properties Co. v. Greening

Decision Date01 August 1944
Citation154 Fla. 814,18 So.2d 908
PartiesGENERAL PROPERTIES CO., Inc., et al., v. GREENING et al.
CourtFlorida Supreme Court

Appeal from Circuit Court, Dade County; Marshall C. Wiseheart judge.

McKay Dixon & DeJarnette and A. Lee Bradford, all of Miami, for appellants.

William D Barfield, of Jacksonville, and Raymond E. Barnes, of Tallahassee, for appellees.

BROWN, Justice.

There being a difference of opinion among the Justices before whom this case was argued, the Chief Justice has assigned the case to me for consideration and the written expression of my views.

Appellee Greening was employed as a general helper in the kitchen of the Roney Plaza Hotel. About 2 o'clock in the afternoon of May 31 1943, he lifted, without any help, two barrels of cracked ice, weighing from about 140 to 150 pounds each, onto a fourwheeled 'dolly' or truck, the platform of which was 8 to 12 inches above the floor, and, hauling the truck, he distributed the ice to different places in the hotel. In a written statement signed by him a week later he stated that the barrels of cracked ice weighed from 100 to 150 pounds each. When testifying as a witness (and the only witness in the case) he said that he had read the written statement and that it was correct. In the written statement, he did not mention lifting any garbage cans, but while testifying as a witness, he said that after he got the ice, he went around and picked up some galvanized garbage cans, the weight of which he did not know, but that they were 'mighty heavy.' He said that he did not feel any pain when he was lifting the barrels of ice or the garbage cans, and that it was not until after he had eaten supper, about 6 o'clock p. m. (some four hours after he had lifted the barrels of ice), as he was walking from the table to the washing room, that he felt a 'sharp tingling pain' in his right groin, which only lasted a few minutes, but returned several times between then and 8 p. m. He mentioned this pain to the kitchen steward and he got some one else to mop the kitchen floor, which appellees usually did. He went to bed about 9:45, and sometime during the night he waked up with a severe pain in his right groin and noticed a lump about the size of a pecan. That he only got short naps the balance of the night, and next day he was examined by Dr. White, who said witness had a hernia, and would have to be operated on. In his written statement, witness said that he had been operated on fifteen years before this for hernia on his left side, but that he had never had any pain, swelling, protrusion or disorder of any kind in his right groin until May 31, 1943, as above related.

While testifying, the deputy commissioner asked appellee this question: 'When did you have an accident?' and his answer was: 'Well, I didn't have an accident. The only thing was lifting those cans around two o'clock in the afternoon.'

The Workmen's Compensation Act, Chapter 440, Fla.Stats. 1941, F.S.A., in Sec. 440.09, contains the following general and basic provision: 'Compensation shall be payable under this Act in respect of disability or death of an employee if the disability or death results from an injury arising out of and in the course of employment.'

But that Act has a specific provision relating to hernia in Section 440.15, F.S. 1941, F.S.A., which reads as follows:

'(6) Hernia: In all claims for compensation for hernia resulting from injury by an accident arising out of and in the course of his employment it must be definitely proved to the satisfaction of the commission:

'(a) That there was an injury resulting in hernia.

'(b) That the hernia appeared suddenly.

'(c) That it was accompanied by pain.

'(d) That the hernia immediately followed an accident.

'(e) That the hernia did not exist prior to the accident for which compensation is claimed.'

Deputy Commissioner Allen Clements found that, 'giving full faith and credit to the claimant's testimony, it cannot be said that said evidence proves: (1) That there was an injury resulting in hernia. (2) That the hernia appeared suddenly. (3) That it was accompanied by pain, and (4) That the hernia immediately followed an accident.' He therefore found that 'claimant's said hernia was not caused by an accident arising out of and in the course of his employment,' and denied the claim.

The full commission reversed this order, specifically upon the authority of Atlantic Marine Boat Yard, Inc., v. Daniel, 138 Fla. 864, 190 So. 612, and Duff Hotel Co. v. Ficara, 150 Fla. 442, 7 So.2d 790, 791. The Circuit Court affirmed the Commission's order and the employer and carrier took this appeal.

Neither of the cases cited by the Commission is in point here. In the Boat-Yard v. Daniel case, which was a hernia case, this Court in its opinion said: 'The petition showed that while pushing a boat into the water on the railway, the roller on the truck struck a joint on the rails and the employee tried to push it over the joint and felt a stinging sensation in his right side.' Further on in the opinion this Court adopted this language of the lower court. 'It is apparent from the language of the award that the sole ground upon which the commission denied compensation results from their conception that the statute requires the claimant, in establishing a compensable claim, to show that the hernia became immediately visible following the accident and that an outward protrusion of the same was forthwith noticed by the claimant.'

And in Duff Hotel Co. v. Ficara, this Court, speaking through Mr. Justice Terrell, said: 'The Deputy Commissioner found that Ficara received his hernia from lifting a heavy pot of meat while standing in a strained position and that this unexpected incident constituted an accident as contemplated by the Workmen's Compensation Act. That it came on suddenly, was accompanied by pain, that it followed the accident immediately and had not previously existed is admitted. Literally the word 'accident' has reference to that which is unexpected, not designed or anticipated or may be brought on by a combination of fortuitous circumstances. We do not agree that a literal show of 'accident' is a prerequisite to recovery.'

Parenthetically we might observe here that the foregoing definition of the word 'accident' is quite similar to the general definition given in the Workmen's Compensation Act, 440.02, paragraph 19, which is: "Accident' shall mean only an unexpected or unusual event, happening suddenly.'

It thus appears that in both of the above cases the claimant suffered sudden pain, of a kind indicating that hernia had taken place, or had begun, while lifting or pushing heavy objects in the course of his work and while actually engaged in such work. So neither of those cases sustains the holding of the Commission in this case, or of the Circuit Court which affirmed it; nor can such action be upheld by this Court unless we disregard the safe-guards which the legislature saw fit to throw around hernia claims in paragraph 6 of section 440.15, Fla.Stats. 1941, F.S.A., hereinabove quoted.

Why did the legislature make these special statutory requirements as to what must be proven for the establishment of a claim to workmen's compensation based on hernia? Can the courts, in their sympathy for the unfortunate, question the wisdom and policy of the legislature in this regard? The last question must of course be answered in the negative. The wisdom and policy of legislative acts is a matter for the legislature to determine. We might find justification for the adoption of these legislative safeguards from what we know of the general nature of hernia from common knowledge and experience, but counsel for the appellants throw considerable light on this question by quoting at some length from Watson on Hernia, 2d Ed., p. 550 et seq., a part of which quotation reads as follows:

'The Swiss courts define the following rules for compensable hernia:

'1. The hernia must appear suddenly.

'2. It must be of recent origin.

'3. It must be accompanied by pain.

'4. It must immediately follow an accident.

'5. It must be proved that the hernia did not exist prior to the accident.

'The Swiss law awards damages in proportion to the predisposition proved.

'The French courts have ruled that there exists 'evidence of the relationship between the work performed by the laborer and the manifestation of the hernia.'

'The French courts have ruled that traumatic and accidental hernias are compensable, but the hernias of weakness are not.

'The California Industrial Commission rules: 'The consensus of medical and...

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    ...the hazards of industry and to lift from the public the burden of supporting those incapacitated by industry. General Properties Co. v. Greening, 154 Fla. 814, 18 So.2d 908 (1944). While we cannot disagree with this statement of purpose, we are unpersuaded that it requires us to accept the ......
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