Geter v. U.S. Steel Corp., 6 Div. 966

• Court: Supreme Court of Alabama
• Citation: 264 Ala. 94,84 So.2d 770
• Docket Number: 6 Div. 966
• Parties: Willie GETER v. UNITED STATES STEEL CORP.
• Decision Date: 19 January 1956

Page 770

84 So.2d 770 264 Ala. 94 Willie GETER
v.
UNITED STATES STEEL CORP. 6 Div. 966. Supreme Court of Alabama. Jan. 19, 1956.

Page 771

Lipscomb, Brobston, Jones & Brobston, W. E. Brobston and Jerry Stapp, Bessemer, for appellant.

[264 Ala. 95] J. R. Forman, Jr., C. V. Stelzenmuller and Burr, McKamy, Moore & Thomas, Birmingham, for appellee.

PER CURIAM.

This review is by certiorari to test the conclusions of law reached in a final judgment of the Circuit Court of Jefferson County, denying the petitioner workmen's compensation upon complaint filed in said court.

The petitioner's action for workmen's compensation was brought under the 1951 amendment to the Workmen's Compensation Law of Alabama, Code 1940, Tit. 26, § 313(1) et seq., treating occupational pneumoconiosis as an accident. The proceeding was against defendant, United States Steel Corporation, a corporation. The petitioner claimed compensation for total and permanent disability caused from occupational pneumoconiosis contracted in defendant's Docena Coal Mine, claiming that such disease arose out of and in the course of his employment with the defendant and resulted from the nature of the employment in which plaintiff was engaged for defendant.

The cause was submitted upon petition for workmen's compensation, answer and replication, together with testimony presented in open court and exhibits introduced.

At the hearing it was stipulated that the parties were subject to the provisions of the Workmen's Compensation Law of Alabama, and that plaintiff, who was fifty-one years of age, had worked underground in defendant's coal mine since the year 1926. During his employment he was exposed to the hazards of coal dust, and his last employment was on October 10, 1952.

Upon leaving defendant's mine on October 10, 1952, his physical condition was diagnosed as active tuberculosis, in the contagious stage. About three weeks thereafter, during which time he had remained at home and in bed, he was taken by rail transportation to a sanatorium in North Carolina. His condition was there diagnosed as advanced tuberculosis and pneumoconiosis, and emphysema. An operation was performed on his chest and he remained a patient at this hospital until some time in August of 1954 when he returned to Birmingham. He is now, and has been since leaving the employ of defendant, totally and permanently disabled from performing any gainful employment [264 Ala. 96] as a result of his pneumoconiosis and tuberculosis. Plaintiff has a dependent wife.

The foregoing are some of the facts found by the court in its decree.

The defendant pleaded in defense the statute of limitation of one year, as provided in section 313(10), Title 26, pocket part, Code.

Page 772

The petitioner contended that section 313(16), Title 26, pocket part, Code, reads into this statute of limitation section 296, Title 26, Code.

Section 296, supra, provides in material part: 'In case of physical or mental incapacity, other than minority of the injured person or his dependents, to perform or cause to be performed any act required within the time in this section specified, the period of limitation in any such case shall be extended to become effective one year from the date when such incapacity ceases'. Section 313(10), supra, in material part provides: 'In case of mental incapacity of the injured employee or his dependents, to perform or cause to be performed any act required within...