Nason v. Jones

• Decision Date: 04 March 1965
• Docket Number: 6 Div. 37
• Citation: 278 Ala. 532,179 So.2d 281
• Parties: George NASON v. Kermit F. JONES.
• Court: Alabama Supreme Court

Page 281

179 So.2d 281

278 Ala. 532

George NASON v. Kermit F. JONES.

6 Div. 37.

Supreme Court of Alabama.

March 4, 1965.

Rehearing Denied Oct. 21, 1965

J. R. Forman, Jr., Robt. G. Tate and Moore, Thomas, Taliaferro & Burr, Birmingham, for appellant.

Tweedy & Beech, Jasper, for appellee.

LAWSON, Justice.

This is a workmen's compensation case.

On April 2, 1953, Kermit F. Jones instituted this suit suit by filing his complaint in the Circuit Court of Walker County against his employer.

In his complaint Jones sought benefits, claiming that on April 7, 1952, he had suffered an accident and injury which arose out of and in the course of his employment, in that he was overcome by carbon monoxide fumes and rendered unconscious.

On April 8, 1955, Jones amended his complaint by correcting the name of his employer and by adding averments to the effect that prior to April 7, 1952, he had contracted occupational pneumonoconiosis while working in the defendant's mine and which disease, along with the inhalation of carbon monoxide fumes, rendered him totally and permanently disabled.

On January 15, 1963, the employer, George Nason, filed a plea wherein he averred that the complaint, as amended, was barred by the statute of limitations of one year.

On August 26, 1963, Jones again amended his complaint by adding an additional count wherein he averred that on, to wit, April 7, 1952, and for some years prior thereto the plaintiff was working in the mines of the defendant in Walker County, Alabama, and that at said time 'both the plaintiff and the defendant were subject to the workmen's compensation laws of Alabama; that said mines were coal mines belonging to the defendant which was a hazardous occupation and accumulated a lot of dust; that on, to-wit, April 7, 1952, the plaintiff was overcome by carbon monoxide fumes and other fumes present in said mine and was rendered unconscious and was taken out of the mines and has never worked in the mines again; that his lungs were damaged; that at the time he had pneumoconiosis [sic] dust disease on his lungs, which was caused, aggravated or brought about or hastened his disabling condition to work in the mines; that his disabled condition was brought about or aggravated by these carbon monoxide fumes and other fumes present in said mine which damaged his lungs and he has not worked any coal mines since said date.'

To the complaint as last amended, the defendant, on August 26, 1963, interposed a demurrer, which was overruled, a plea setting up the statute of limitations of one year and an answer wherein it was admitted plaintiff and defendant were subject to the workmen's compensation laws on April 7, 1952, and that the plaintiff had been employed by the defendant in underground mining for more than one year prior to April 7, 1952. The answer averred that plaintiff's average weekly earnings were $66.15 per week and that plaintiff 'had last worked on April 7, 1952.' The answer denied all other allegations of the complaint as last amended.

The case proceeded to trial and at the close of the testimony the trial court took the cause under advisement. On September 30, 1963, a final decree was rendered in favor of the plaintiff.

The defendant filed in this court a petition for writ of certiorari to review the decree of the trial court. The writ was duly issued.

The defendant insists that the trial court erred in holding that the amendments to the complaint were not subject to 'the statute of limitations of one year.'

The argument is that the amendments to the complaint added a new cause of action so that the amendments dated as of the time they were filed and did not relate back to the date of the filing of the original complaint, 'insofar as the statute of limitations is concerned.'

Where there is an amendment to a complaint which adds a new cause of action, it does not relate back to the commencement of the suit insofar as the statute of limitations is concerned.--United States Steel Corp. v. McGehee, 262 Ala. 525, 80 So.2d 256; Leslie v. Republic Steel Corp., 273 Ala. 586, 143 So.2d 442.

The question of whether a particular amendment adds a new cause of action has been before this court many times. In the case of Isbell v. Bray, 256 Ala. 1, 53 So.2d 577, we quoted with approval from the case of Alabama Consolidated Coal & Iron Co. v. Heald, 171 Ala. 263, 55 So. 181, as follows:

'* * * 'A new cause of action is not set up by amendment, within the rule governing the statute of limitations in such cases, where the same substantial facts are pleaded merely in a different form, so that a recovery on either count of the complaint would bar a recovery on the other. * * * As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration in the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope * * * of the testimony.'' (256 Ala. 4, 53 So.2d 579)

The Isbell case, from which we quoted above, did not deal with a statute of limitations question, but the rule of the Isbell case has been stated and followed in cases involving the statute of limitations.--United States Steel Corp. v. McGehee, supra; Ex parte Godfrey, 275 Ala. 668, 158 So.2d 107.

We are clear to the conclusion that in the instant case the amendments add a new cause of action insofar as they seek to recover benefits for occupational pneumonoconiosis.

The cause of the injury claimed in the original complaint was the inhalation of carbon monoxide fumes during a period of several hours and nothing more, while the cause of the disease of occupational pneumonoconiosis is, by definition and under the evidence in this case, the inhalation of minute particles of dust over a period of years.

As early as 1926, in the case of New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360, this court held that a plaintiff who was engaged in coal mining and was overcome by, and rendered unconscious, as a result of breathing carbon dioxide or carbon monoxide gas or both, suffered an accident within the meaning of the Workmen's Compensation Law. In the original complaint plaintiff sought to recover on this theory alone.

The claim of occupational pneumonoconiosis set forth in the amendments is governed by the provisions of Act 180, approved June 29, 1951, Acts of 1951, Vol. I, p. 426; Pocket Parts, 1940 Code of Alabama, Title 26, §§ 313(1)-313(16); 1958 Recompiled Code of Alabama, Title 26, §§ 313(1)-313(16). This 1951 act, supra, made the diseas of occupational pneumonoconiosis compensable as an injury by accident under the Workmen's Compensation Law only if (1) the disease arose out of and in the course of the employment; (2) the disease resulted from the nature of the employment in which the employee was engaged under such employment; (3) as to the industry in which the employee was engaged there was attached (a) a particular hazard of such disease, (b) the hazard attached to such employment was such as distinguished such employment from the usual run of occupations, and (c) the hazards of such disease in the employment in which the employee was engaged is in excess of the hazards of such disease attending employment in general. See United States Steel Corp. v. Danner, 263 Ala. 310, 82 So.2d 404.

The injury relied upon in the original complaint is different from the disease of occupational pneumonoconiosis treated in the amendments. The medical testimony presented on the trial of this case was...