De La Pena v. Jackson Stone Co.

• Decision Date: 30 July 1925
• Citation: 103 Conn. 93,130 A. 89
• Court: Connecticut Supreme Court
• Parties: DE LA PENA v. JACKSON STONE CO. ET AL.

130 A. 89

103 Conn. 93

DE LA PENA v. JACKSON STONE CO. ET AL.

Supreme Court of Errors of Connecticut.

July 30, 1925

Appeal from Superior Court, Fairfield County; John R. Booth, Judge.

Proceeding under the Workmen's Compensation Act by Cecelia De La Pena, for the death of her husband, claimant, opposed by the Jackson Stone Company, employer, and others. From an order of the Compensation Commissioner granting an award, confirmed on appeal by the superior court, the employer appeals. No error.

Jacob Schwolsky, of Hartford, for appellant.

Samuel Reich, of Bridgeport, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and MALTBIE JJ.

WHEELER, C.J.

Errors based upon corrections of the finding are not supported by the evidence. Errors pursued in argument are: (1) That the decedent employee did not sustain an injury under our law and, if he did, it did not arise out of and in the course of his employment. (2) That there was no causal connection between his employment and the disease (pneumonia) from which he died. The facts found by the commissioner take the case out of two classes which would concededly support a recovery--pneumonia induced by traumatic agency, and an injury peculiar to the occupation. The facts found are comparatively brief. The decedent was employed by Jackson Stone Company as a marble setter, and worked in Westport in April, 1924, setting marble. During this time a terrazzo floor was being laid in the room where he worked, which was continually wet. The building was heated part of the time, but the doors were opened all the time. From April 10th to the 17th when the job was finished, the decedent complained of not feeling well and refused to go on a job at Yonkers, N. Y., for the reason that he was sick. On April 18th, Good Friday, he was at home suffering from a cough and cold and felt bad all over. Defendant employer sent an open truck for him on the 18th, and persuaded him to ride in it and to work in the shop, which he did until about 10 o'clock in the afternoon, and returned home in the rain. From April 19th to 23d, he worked in New Haven in an unheated building, and his work required him to use considerable water. During this period he complained continually of feeling sick with headaches, soreness of eyes, pains all over his body, etc. He worked in New Haven next day on another job, and when he returned home that night he was so ill that he immediately went to bed and was given home remedies until May 1st, when a doctor was called in and found him suffering from influenza with bronchitis, and on May 6th lobar pneumonia developed, causing his death May 7th. The pneumonia resulted from the influenza, and was super induced by the dampness and exposure while working for defendant in Westport, and further developed on April 18th by riding in an open truck, the weather being cold and rainy. This condition was further aggravated by decedent's work in New Haven where there was no heat, and where water was used in connection with his work. During the period the influenza was developing, the decedent complained to his employer from time to time of his being sick.

The commissioner finds from these facts that the decedent sustained an injury arising out of and in the course of his employment which resulted in his death on May 7th. Defendants' fundamental position denies the right to the recovery of compensation because the subordinate facts do not show a personal injury within our Compensation Act (Gen. St. 1918, § § 5339-5414). In Miller v. American Steel & Wire Co., 90 Conn. 349, 97 A. 345, L.R.A. 1916E, 510, we determined that within our Compensation Act " personal injury" due to disease could be awarded only when the disease was the direct result or natural consequence of an accidental bodily injury; that is, when the personal injury involved both an accident and a bodily injury as distinguished from a disease. In Linnane v. AEtna Brewing Co., 91 Conn. 158, 162, 99 A. 507, 509 (L. R. A. 1917D, 77), we defined personal injury as used within our act, as it existed in 1916, thus:

" An accidental bodily injury may, therefore, be defined as a localized abnormal condition of the living body directly and contemporaneously caused by accident."

We defined an accident as:

" An unlooked-for mishap or an untoward event or condition not expected."

And we said:

" The concurrence of accident and injury is a condition precedent to the right to compensation."

It applied the definition to the case before it in this fashion. An employee working overtime and by exposure to the weather became exhausted, the following day he took a cold, which 5 days later developed into pneumonia, and we held that mere exhaustion was not a disease, because exhaustion, although accidentally incurred, is not of itself a localized bodily injury, since " it may or may not overcome the elastic resistance of the system and may or may not result either in a bodily injury or in a disease." Thereafter chapter 142 of the Public Acts of 1919 was passed, undoubtedly to change the law as announced in the Miller Case. It reads:

" If an injury arises out of and in the course of the employment it shall be no bar to a claim for compensation that it cannot be traced to a definite occurrence which can be located in point of time and place."

In Dupre v. Atlantic Refining Co., 98 Conn. 646, 651, 120 A. 288, 290, decided under the 1919 amendment, we point out:

" In the Linnane Case, for example, all the conditions including the decedent's night journey to the place of employment on foot in a heavy snowstorm, in response to an emergency call, his untimely and prolonged hours of work, and his exposure to extremes of heat and cold while at work, were grouped together and held to satisfy the broad definition of accident announced in that case. On the other hand, the Linnane Case did require that the injury should be capable of being definitely ‘ located in point of time and place,’ and the fact that this phrase of the amendment parallels very closely the definition of injury in the Linnane Case as a ‘ localized’ abnormal condition of the human body ‘ contemporaneously’ caused by accident, points very clearly to an intent to eliminate the two words last quoted from the definition of injury laid down in that case."

The necessity of definitely...