Gilliland v. The Ash Grove Lime & Portland Cement Company

• Decision Date: 10 May 1919
• Docket Number: 22,124
• Court: Kansas Supreme Court
• Parties: MILLIE A. GILLILAND et al., Appellants, v. THE ASH GROVE LIME & PORTLAND CEMENT COMPANY, Appellee

180 P. 793

104 Kan. 771

MILLIE A. GILLILAND et al., Appellants, v. THE ASH GROVE LIME & PORTLAND CEMENT COMPANY, Appellee

No. 22,124

Supreme Court of Kansas

May 10, 1919

Decided January, 1919.

Appeal from Neosho district court; SHELBY C. BROWN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

COMPENSATION ACT--Death from Pulmonary Hemorrhage--Injury Arose Out of Employment--An "Accident." A workman's employment required him to break rock in a quarry with a 16-pound sledge and load the rock into a car, which was hard work. At noon he was in apparent good health and spirits, and ate all of the lunch which his wife brought to the quarry for him. In the afternoon, while at his working place, and shortly after he was seen beating a large rock with his sledge, he suffered a pulmonary hemorrhage, from which he died before medical aid could reach him. He had been working in the quarry for several months, and before that had worked for three years in the sacking department of a cement plant an exceedingly dusty place. Held, the facts stated indicated injury by accident, and injury arising out of the employment, within the meaning of the first section of the workmen's compensation act.

T. F. Morrison, of Chanute, for the appellants.

J. K. Cubbison, and William G. Holt, both of Kansas City, for the appellee.

OPINION

BURCH, J.:

The action was one by dependents for compensation for death of a workman. A demurrer was sustained to the plaintiff's evidence, judgment was rendered for the defendant, and the plaintiffs appeal.

The deceased worked for about three years in the sacking department of the defendant's plant, and for several months before his death worked in the defendant's quarry. The sacking department was an exceedingly dusty place. In the quarry, masses of rock were dislodged by the use of dynamite. Large masses were then reduced to fragments by the same means. Fragments larger than a man could lift, and weighing up to 500 pounds or more, were reduced by use of a sledge. Rock thus reduced was lifted and shoveled into small cars which were moved to the plant. While working in the quarry the workman was paid by the car for loading cars, and it was necessary for him to break up such fragments of rock as required reduction, by blows of a 16-pound sledge. Breaking rock was hard work, and in order to earn fair wages when paid by the car it was necessary for a man to work very hard.

The injury occurred on November 1, 1916. In July and August, 1915, the deceased was incapacitated for work for eight weeks on account of typhoid fever. On the day of the injury his wife took his lunch to him at the quarry, and was with him from about 11 a. m. until noon. He seemed to be feeling well, was cheerful and in good spirits, and ate all of his lunch. In the afternoon, while at his working place, he was observed to be bending over and bleeding copiously. Streams of blood were gushing from his mouth and nostrils, and he died before medical aid could reach him. Shortly before the hemorrhage occurred he was beating a rock weighing between 500 and 1,000 pounds, with his sledge. A physician testified as follows:

"Q. What would you say with reference to a man working three years in the sacking department of the Ash Grove Lime and Portland Cement Company, and after working there about three years going into the quarry to load rock, breaking big limestone rock with a 16-pound sledge hammer, what, if any, effect would that have to produce a hemorrhage; would it or not produce a hemorrhage? A. I think a person who had worked for three years in that sacking department could expect almost anything from it.

"Q. You may state to the jury now whether it would be likely to cause hemorrhage--working in the quarry, breaking rock with a 16-pound sledge and loading it. A. It might possibly do it.

"Q. In your judgment would it have a tendency to do it? A. Yes, sir, I think so."

The defendant justifies the ruling sustaining the demurrer to the evidence on the ground the workman did not suffer personal injury "by accident" within the meaning of the compensation act, which at the time provided as follows:

"If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act." (Gen. Stat. 1915, § 5896.)

The word accident does not have a settled legal signification. It does have, however, a generally accepted meaning, which is the same whether considered according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force. The word undesigned must not be taken too literally in this connection, because a person may suffer injury accidental to him, under circumstances which include the design of another. The same warning may be extended regarding other elements of the definition; but as definitions go, the one, here proposed is correct, at least for present purposes. In this instance all the characteristics of an accident were present. The occurrence was sudden, unexpected, and undesigned by the workman. While no one saw the workman strike a blow with his heavy sledge, or lift a heavy piece of rock the moment before the hemorrhage occurred, the circumstances were clearly such that the jury would have been authorized to relate the hemorrhage to blood pressure intensified by vigorous muscular exertion. Relating the hemorrhage to physical exertion, rupture of the pulmonary blood vessel by force from within was as distinctly traumatic as if the canal had been severed by the violent application of a sharp instrument from without. There was no direct evidence of extraordinary exertion suddenly displayed. When last observed, the deceased was working in the manner habitual to the employment. The fact remains, however, that an extraordinary and unforeseen things suddenly and unpremeditatedly occurred, and presence of all the essential attributes of accident cannot be gainsaid.

The defendant insists a sharp distinction must be made between injury as one thing, and accident producing it as another thing. Some courts have made this distinction, have confined casualty to antecedent cause alone, and have held that compensation may not be made for injury resulting from the intentional performance of usual acts in the usual way. The question arose in England under the compensation act, the words of which were adopted by our own legislature in 1911: "Personal injury by accident arising out of and in the course of employment."

In the case of Fenton v. Thorley & Co., Limited, Appeal Cases [1903], page 443, the House of Lords considered and disposed of the question. A workman employed to turn the wheel of a machine felt something which he described as "a tear in his inside," and examination disclosed a rupture. There was no evidence of any slip or wrench or sudden jerk. The injury occurred while the man was engaged in his ordinary work, and in doing, or trying to do, the very thing he aimed to accomplish. The quoted provision was interpreted in the light of the manifestly beneficial and remedial purpose of the compensation act. The ordinary and popular meaning of the word accident as denoting mishap or untoward event not expected or designed, was accepted and applied, and it was held the expression "injury by accident" meant simply accidental injury, or accident in the popular sense. In the judgment delivered by Lord Macnaghten, reversing the court of appeal, and directing an award of compensation, it was said:

"If a man, in lifting a weight or trying to move something not easily moved, were to strain a muscle, or rick his back, or rupture himself, the mishap in ordinary parlance would be described as an accident. Any-body would say that the man had met with an accident in lifting a weight, or trying to move something too heavy for him. . . .

"There is . . . a recent decision of the court of session in Scotland to which I should like to call your Lordship's attention, and in which I agree entirely. It is the case of Stewart v. Wilsons and Clyde Coal Co. Ld. (5 Frazer 120). A miner strained his back in replacing a derailed coal hutch. The question arose, Was that an accident? All the learned judges held that it was. . . . What the miner did in replacing the hutch he certainly did deliberately and in the ordinary course of his work. There was nothing haphazard about it. Lord M'Laren observed that it was impossible to...