Hartford Acc. & Indem. Co. v. Hay

• Decision Date: 15 June 1929
• Citation: 17 S.W.2d 904,159 Tenn. 202
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. HAY.
• Court: Tennessee Supreme Court

17 S.W.2d 904

159 Tenn. 202

HARTFORD ACCIDENT & INDEMNITY CO. v. HAY.

Supreme Court of Tennessee.

June 15, 1929

Appeal from Circuit Court, Davidson County; A. B. Neil, Judge.

Proceeding under the Workmen's Compensation Act by R. W. Hay employee, opposed by the Hartford Accident & Indemnity Company. From an award in favor of the employee, the insurer appeals. Affirmed.

McGugin & Evans and W. F. Carpenter, all of Nashville, for plaintiff in error.

Thos W. Schlater, Jr., and Edwin A. Price, Jr., both of Nashville for defendant in error.

GREEN C.J.

This is a proceedings under the Workmen's Compensation Act (chapter 123 of the Acts of 1919), brought by the employee directly against his employer's insurer, as section 45 of said statute authorizes. An award was made in favor of employee by the trial court, and the insurer has appealed.

The employee drove a laundry wagon in the service of the Model Steam Laundry, a corporation doing business at Nashville. The employee, in the course of his duties, was charged with the care of his horse, and it was necessary for him to be about the stables of his employer frequently.

While in the stables in August, 1925, the employee noticed a small pimple or blackhead on his person and undertook to squeeze it. The supposed pimple thereafter festered and within a day or two the employee undertook to prick it with a sterilized needle and let out the pus. The place grew worse, and the employee went to a doctor for treatment. The doctor diagnosed the trouble as a venereal disease and proceeded to treat it accordingly. No improvement was manifested in the employee's condition under such treatment, but on the contrary he grew much worse, and it was necessary for him to go to the hospital. Another doctor was called in and he agreed in the diagnosis of the first, and the two physicians continued to apply very drastic remedies appropriate to a case of severe venereal affliction. This treatment did no good, the trouble progressed, and the petitioner was removed to another hospital and other physicians called in, among them a specialist in skin diseases.

After being removed to the second hopsital, the employee was subjected to many tests-for all sorts of venereal diseases, for cancer, and for other maladies, and it was found that he was suffering from none of these things. Finally, by a process of elimination, it was determined by the medical men that the petitioner was afflicted with blastomycosis. He was thereupon treated for this disease and began to improve within a few days. The treatment was continued, and the employee finally recovered entirely, with the exception of a mutilation which is not compensable under the statute.

It appears from the proof that blastomycosis is a disease that is very rare in man. Few doctors ever see a man so afflicted. It is common, however, in horses. It is a germ disease, the germs breeding around a dark and damp place, such as a stable. A horse may be a host for the germ and be entirely free from the disease itself.

We think the trial judge had abundant evidence before him to warrant the conclusion that the employee was infected with the germ of blastomycosis while handling his horse in and around the stables of the employer. That is to say, we think there was evidence to warrant the finding that the employee's unfortunate plight arose out of and in the course of his employment. It remains to be determined, however, whether the employee's misfortune was an injury by accident within the meaning of the Workmen's Compensation Act.

Subsection (d) of section 2 of the Statute provides that:

"'Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of employment, and shall not include a disease in any form except as it shall naturally result from the injury."

Referring to the section just quoted, in Meade-Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, the court said:

"It necessarily results therefrom that, to entitle the employee to recover in this case, the disease of which he complains and for which he seeks compensation must have naturally resulted from an injury by accident."

The court then goes on to define the term and says:

"The word 'accident' is derived from the Latin 'adcidere,' meaning to fall, a befalling, or not designed, and is usually applied to an event or happening in the nature of a misfortune, casual or fortuitous."

In Meade-Fiber Corp. v. Starnes the employee was denied an award because he was afflicted with an occupational disease, that is, one naturally resulting from the character of his employment, and there was nothing fortuitous or accidental in his affliction.

In King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 53 A. L. R. 1086, a fireman in the performance of his duties suffered heat prostration, from which prostration pneumonia was found to have naturally resulted, producing his death. This court made an award in favor of the widow. The prostration of the fireman was found to be fortuitous, not to be expected, an unusual event or result, and therefore accidental. This conclusion was reached upon the authority of several English cases cited, and the court said:

"We do not find anything in our statute, nor in the opinion of Meade-Fiber Corp. v. Starnes, supra, which would exclude from the application of the statute any 'injury by accident,' regardless of whether the injury is made manifest by a condition of the body which medical science terms a diseased condition rather than a traumatic condition. The exclusion is of any disease which does not amount to an 'injury by accident,' or which does not naturally result from such an injury."

In McFarland v. Massachusetts Bonding & Ins. Co., 157 Tenn. 254, 8 S.W.(2d) 369, the court had before it a suit upon an accident policy insuring "against disability or death resulting directly, and independently of all other causes, from bodily injury sustained through external, violent and accidental means, suicide, sane or insane, not included." A bill was held to state a case which alleged that the complainant was injured by the entry of gonococi germs from some external source with violence sufficient to impact themselves in the tissues of his eyes. It further appeared from the bill that the germs entered the eyes of complainant by means unknown to him and at a time and place unknown to him. It was held that such an infection as this, not being a natural or expected result of a voluntary or intentional act of the insured, was to be deemed an accident within the meaning of the policy.

McFarland v. Massachusetts Bonding & Ins. Co. and King v. Buckeye Cotton Oil Co. both lay down that an accidental injury is not necessarily of traumatic origin, strictly speaking. If it be an injury not reasonably to be foreseen, unexpected and fortuitous, it is an accidental injury whether occasioned by heat, germs, or more abrupt or perceptible physical force.

I may say that I bowed to the conclusions reached in these two cases with reluctance. The court, however, has been over the matter twice with like results, and I feel that I must distrust and yield my former notions.

It is to be inferred from the medical testimony offered by the employee that he was infected with blastomycosis while caring for his horse and when his fingers came in contact with the abrasion made by squeezing the pimple. Observations of the trial judge show that he did not consider such of that testimony as tended to prove the ultimate fact, and was incompetent.

Whether a particular infection is an accidental injury must be determined on the facts of each case. The facts of the present case bring it fully within the authority of King v. Buckeye Cotton Oil Co. and McFarland v. Massachusetts Bonding & Ins. Co.

It is next insisted by the insurance company that this suit is barred by subsection 1, § 31, of the Workmen's Compensation Act, providing that actions or proceedings by an injured employee to determine or recover compensation are limited to one year after the occurrence of the injury.

As heretofore stated, the...