Pow v. Southern Const. Co., Inc.

• Court: Alabama Supreme Court
• Writing for the Court: BOULDIN, Justice.
• Citation: Pow v. Southern Const. Co., Inc., 180 So. 288, 235 Ala. 580 (Ala. 1938)
• Decision Date: 20 January 1938
• Docket Number: 6 Div. 191.
• Parties: POW v. SOUTHERN CONST. CO., INC.

180 So. 288

235 Ala. 580

POW v. SOUTHERN CONST. CO., INC.

6 Div. 191.

Supreme Court of Alabama

January 20, 1938

Rehearing Denied April 21, 1938.

Certiorari to Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Proceeding under Workmen's Compensation Act by Margaret L. Pow against the Southern Construction Company, Inc., to recover compensation as dependent of deceased employee. Judgment denying compensation, and petitioner brings certiorari.

Reversed and remanded.

Where the duties of an engineer required long-continued exposure to wetting and chill of water accumulated in excavations materially in excess of exposure to which other people in locality were subject, death from pneumonia because of exposure resulted from an "accident" and was compensable under the Workmen's Compensation Law. Code 1940, Tit. 26, § 253 et seq.

The decree of the trial court is in pertinent part, as follows:

"Finding of Fact.

"The court finds the following facts, viz:

"(1) The said A. S. Pow, now deceased, was employed by the defendant, Southern Construction Company, Inc., a corporation, in accordance with the legal meaning of that term as used in the Workmen's Compensation Law of the State of Alabama, prior to his death and on and prior to the 5th day of August, 1936. On said date and prior thereto, the defendant was doing business in Jefferson County, Alabama, at Birmingham, and had in its employ more than sixteen employees, and was subject to and governed by the Workmen's Compensation Law of the State of Alabama, as was the said A. S. Pow; that on and prior to the 5th day of August, 1936, defendant company was engaged in construction work, under contract, for the Federal Emergency Administration of Public Works, Housing Division, at Smithfield Court, Birmingham, Alabama; that on and prior to the 5th day of August, 1936, the deceased, said A. S. Pow, was certifying engineer for said construction work, and was engaged in his duties as such engineer, and that defendant paid the wages of said A. S. Pow, in the amount of $40.00 per week, and that said A. S. Pow was, on said date and prior thereto, and at the time of his death, an employee of the defendant within the meaning of the Workmen's Compensation Act of the State of Alabama, and as such employee was subject to and governed by the provisions of said Workmen's Compensation Act.

"(2) The court further finds that at the time of his death petitioner Margaret L. Pow was the wife of said A. S. Pow, and is now his widow, and has not since remarried, and was dependent upon her said husband, the said A. S. Pow, for support and maintenance, and that he did support and maintain her, and that in addition to petitioner the said deceased A. S. Pow had and left at the time of his death and at the time of the injury, one child, viz, Alex Pow, who was living with said A. S. Pow at the time of his death and dependent upon him for support and maintenance, and that said Alex Pow became 18 years of age, to-wit, January 11th, 1937.

"(3) The court further finds that on, to-wit, the 5th day of August, 1936, while the said A. S. Pow was working for the defendant and was in the act of performing the duties of his employment as certifying engineer, which consisted in part of inspecting excavations, ditches and footings for foundations to obtain certain engineering data, and while said ditches, footings, foundations and excavations contained water and mud greatly in excess of that which was to be found on said date and at said time in territory surrounding the territory wherein the duties of said A. S. Pow required him to be, in which said ditches the court finds that the water was of such depth as to reach approximately half way to the knees of said A. S. Pow while he was engaged in his duties as certifying engineer as aforesaid, the said duties of said A. S. Pow requiring him to enter said excavations, footings, ditches and foundations, and wade in said water, and the court further finds that on the date hereinabove set out, viz, the 5th day of August, 1936, the construction work involved in said project was two weeks behind schedule and was being rushed by the employers of said A. S. Pow, and that in order for the work to proceed, the said A. S. Pow had to work and obtain said engineering data without delay, and the court further find that as was necessary for him to do under the facts and circumstances surrounding his said employment at said time the said A. S. Pow did get down into said ditches, footings, foundations and excavations, and became exposed to the wetting and chill of the water accumulated in said excavations, and became wet to the knees and chilled therefrom, and that the exposure and chill which he suffered was greatly and materially in excess of that to which other people not similarly employed in said locality were exposed and were required to be exposed; and the court further finds that before said wetting and exposure, on said date, the said A. S. Pow was in good health and that the afternoon of the same day that he was exposed as aforesaid, the said A. S. Pow kept his wet clothes on the remainder of the afternoon and came to town during the afternoon remaining until late in the afternoon, and went to bed that night complaining of feeling badly and reported to work the following day complaining that he was feeling badly and did not stay on duty all day but during the day went home and was found that night at home in bed, and that thereafter continuously, from the night of the 6th day of August, 1936, until the date of his death on to-wit, August 10th, 1936, he was confined to his bed and gradually grew worse and that on the 5th day of August, 1936, the said A. S. Pow, by reason of said exposure, contracted a severe cold and had a congested condition of his chest and a severe cough, and that he began shortly thereafter to spit up black thick mucuous and blood; that on August 10th, 1936, his condition was diagnosed as bronchial pneumonia or bronchitis, which condition produced his death on said date, with a possible complication of cerebral hemorrhage induced by said condition of bronchial pneumonia or bronchitis, and the court further finds as a fact that the death of said A. S. Pow was the proximate result of bronchial pneumonia or bronchitis, contracted by said A. S. Pow on the occasion of his exposure consequent upon the necessity of his getting into the excavations or ditches in or about his duties as certifying engineer on the 5th day of August, 1936, and under the circumstances and conditions hereinabove recited.

"The court further finds that the said exposure of said A. S. Pow, which resulted in his death, occurred at the time and place at which said A. S. Pow did expose himself as required by the duties of his occupation as certifying engineer on the 5th day of August, 1936, by getting down into the ditches and excavations, as required by his said duties, in order to take readings and procure the engineering data hereinabove referred to.

"The court further finds that the defendant had actual notice and actual knowledge of the alleged accident and alleged injury and death of the said A. S. Pow and of the plaintiff's intention to claim compensation therefor, and in addition received written notice thereof on the 16th day of September, 1936, and within the time required by law.

"The court further finds that the average weekly earning of said A. S. Pow was $40.00 per week.

"Conclusion of Law.

"In the opinion of the court, the bronchial pneumonia or bronchitis, causing the death of said A. S. Pow, resulting from exposure as hereinabove found by the court, was not caused by an accident and that his death was not caused by an accident within the meaning of the Workmen's Compensation Act of the State of Alabama, and that said exposure, as a matter of law, could not be deemed to be an unexpected or unforseen event, happening suddenly and violently and producing at the time injury to the physical structure of the body by accidental means, and the court finds that the plaintiff is not entitled, therefore, to receive compensation on account of the death of said A. S. Pow.

"Wherefore, it is ordered, adjudged and decreed by the court that compensation be, and it hereby is, denied plaintiff as petitioner, and judgment is hereby rendered for defendant.

"It is further ordered, adjudged and decreed that the costs of this cause be taxed against the plaintiff, for which let execution issue, as provided by law."

Harsh, Harsh & Hare and N. S. Hare, all of Birmingham, for appellant.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellee.

BOULDIN Justice.

Certiorari to review a workman's compensation case.

There is no bill of exceptions. Hence, there is no question of lack of legal evidence to support the finding of facts by the trial judge. The issue here is purely one of law, namely: Was the conclusion of law correct on finding and conclusion of facts?

The finding of facts, pertinent to this review, found in third paragraph of the court's decree, and his conclusion of law thereon, appear in full in the report of the case.

Stress is laid on the express finding that at the time and place and while engaged in the duties required by his employment, the deceased "became exposed to the wetting and chill of the water accumulated in said excavations, and became wet to the knees and chilled therefrom, and that the exposure and chill which he suffered was greatly and materially in excess of that to which other people not similarly employed in said locality were exposed and were required to be exposed; * * * and the court further finds as a fact that the death of said A. S. Pow was the proximate result of bronchial pneumonia or bronchitis, contracted...