Great Atlantic & P. Tea Co. v. Sexton
| Decision Date | 02 February 1932 |
| Parties | GREAT ATLANTIC & PACIFIC TEA CO. v. SEXTON. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Perry County.
Action by Dennis Sexton against the Great Atlantic & Pacific Tea Company and another. From judgment for plaintiff, the named defendant appeals.
Reversed and remanded.
C. W Napier and M. K. Eblen, both of Hazard, and Carroll & McElwain, of Louisville, for appellants.
Craft & Stanfill, of Hazard, for appellee.
The Great Atlantic & Pacific Tea Company, hereinafter called the company, operates a store in the city of Hazard, and connected therewith is a meat market in which Dennis Sexton was formerly employed. Sexton instituted this action in the Perry circuit court against the company and Claude Collins manager of the meat market.
He alleges in his petition that, on December 17, 1929, while skinning and dressing a shipment of rabbits for the company, and under the orders and direction of Collins, he contracted the disease technically known as tularaemia, but commonly called rabbit fever; that by reason of this disease he has suffered, and will continue to suffer, great bodily pain and mental anguish, and that his health has been greatly and permanently impaired. He claims that the company and the manager of the meat market were negligent, in that they knew, or by the exercise of ordinary care could have known, that the rabbits were infected with the disease, and that they ordered him to dress the rabbits without warning him of the danger in so doing; that he did not know, and by the exercise of ordinary care could not have known, that the rabbits were so infected, or that it would endanger his health to dress and prepare them for market.
The defendants by answer traversed the allegations of the petition, and in a second paragraph it is alleged by the company that on March 27, 1930, it reached an agreement with plaintiff whereby it paid to him the sum of $65 which he agreed to accept in full satisfaction of all claims of every sort growing out of the injuries complained of in his petition.
In a third paragraph the company alleges that it had elected to and was operating under the Workmen's Compensation Act of Kentucky (Ky. St. §§ 4880-4987) when plaintiff sustained his alleged injuries, and that he was working as an employee of the company, and as such had accepted the provisions of that act.
By reply, appellee controverted the affirmative allegations of the answer, and admitted that he had been paid $65 by the company. He stated that this sum was not paid him in satisfaction of his alleged injuries, but as wages, and that his signature to any papers purporting to be a settlement of his claim for injuries was procured through fraud and misrepresentation.
Pleas of contributory negligence and assumed risk were set up by way of an amended answer which by agreement was controverted of record, and the issues were completed by rejoinder traversing the affirmative allegations of the reply.
On final hearing, the jury returned a verdict for plaintiff in the sum of $5,000, and, from a judgment based thereon against the company, this appeal has been prosecuted.
From the evidence of appellee, it is made to appear that, at the time he dressed the rabbits, there was a small abrasion or scratch on one of his fingers which he suffered while splitting kindling at home. When ordered by Mr. Collins to dress the rabbits, he mentioned the cut on his finger, and stated that he was afraid of "that disease," but Collins directed him to go ahead and dress them. The livers of some of the rabbits were enlarged and of a brownish color, spotted with white. On December 20, he was stricken with headache, and sore throat, accompanied by high fever, and on the following day his suffering had become so intense he consulted Dr. Boggs. His injured finger at the time had become inflamed and badly swollen, and, together with other pus gatherings on his arms and neck, was lanced several times by physicians. Since stricken with this disease, he has been incapacitated to perform labor. Drs. Coldiron and Boggs testified that Sexton was suffering from tularaemia and with enlargement of the glands and cirrhosis of the liver and spleen caused by that disease, and that it has resulted in the permanent impairment of his health.
The evidence shows that the company had elected to operate under the provisions of the Workmen's Compensation Act, and that appellee as its employee had accepted the provisions of the act. There is a conflict in evidence in regard to the alleged settlement of the claim when appellee accepted from the company the sum of $65. Collins testified that appellee made no complaint to him about a cut upon his finger and made no protest against skinning the rabbits. He stated that he had no knowledge of the rabbits being infected with disease, and appellee said nothing to him at the time, but made some mention of it after he claimed to have become infected therewith.
The first question presented for determination is whether appellee's alleged injury is compensable under the first section of our Workmen's Compensation Act, section 4880, Kentucky Statutes. To hold that it does would obviate the necessity of giving consideration to any other question presented. So much of the section as is pertinent reads: "This act *** shall affect the liability of the employers subject thereto to their employees for personal injuries sustained by the employee by accident arising out of and in the course of his employment, or for death resulting from such accidental injury; provided, however, that personal injury by accident as herein defined shall not include diseases except where the disease is the natural and direct result of a traumatic injury by accident. ***"
If appellee's injury comes within the exception to the proviso in the quoted language of the statute, and his disease is the natural and direct result of traumatic injury by accident, then the circuit court was without jurisdiction to hear and determine the matter so far as the company is concerned, but, if not so included, he is pursuing the proper remedy.
Generally speaking, the word "accident" is held to mean an unusual, unexpected, and undesigned event, happening without negligence. Chicago Veneer Co. v. Jones, 143 Ky. 21 135 S.W. 430; Held v. Commonwealth, 183 Ky. 209, 208 S.W. 772. But, as used in the Workmen's Compensation Act, it is held to mean the happening of such event with or without negligence. Grannison's Adm'r v. Bates & Rogers Construction Co., 187 Ky. 538, 219 S.W. 806; Phil Hollenbach Co. v. Hollenbach...
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...Coleman Mining Co. v. Wicks, 213 Ky. 134, 280 S.W. 936 (1926); (2) Tularaemia from handling rabbits, Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 87 (1932); (3) Heat stroke from 'artificial' heat, Wolfe v. American Rolling Mill Co., 277 Ky. 395, 126 S.W.2d 835 (1939); ......
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...as something 'unusual, unexpected, and undesigned * * * traceable to a definite time, place, and cause'. Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 87, 88. And we find our use of the word is in full accord with its generally accepted meaning in almost every other jur......
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...in a risk connected with the employment, and to have flowed from that source as a rational consequence. Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 87; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L.R.A. 1916F, Where, as here, the claim for compensation ......
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