Southern Cement Co. v. Walthall

• Decision Date: 17 May 1928
• Docket Number: 6 Div. 20
• Citation: 117 So. 17,217 Ala. 645
• Parties: SOUTHERN CEMENT CO. v. WALTHALL.
• Court: Alabama Supreme Court

117 So. 17

217 Ala. 645

SOUTHERN CEMENT CO. v. WALTHALL.

6 Div. 20

Supreme Court of Alabama

May 17, 1928

Rehearing Denied June 7, 1928

Certiorari to Circuit Court, Jefferson County; Joe C. Hail, Judge.

Proceeding under the Workmen's Compensation Act by Mary Walthall, as administratrix of the estate of Raymond E. Walthall deceased, to recover compensation on account of injury and death of the deceased employee. Judgment awarding compensation, and the employer brings certiorari. Writ denied; affirmed.

London Yancey & Brower and Frank Bainbridge, all of Birmingham, for appellant.

Harsh &amp Harsh, of Birmingham, for appellee.

SOMERVILLE J.

The contentions of appellant--defendant below--are (1) that the evidence shows that the deceased workman died of paralysis, the result of apoplexy, and that his death did not result from "an accident arising out of and in the course of his employment"; (2) that, in any case, under section 7561 of the Code, defendant is liable only for the disability that would have resulted from the accident, had the workman's earlier infirmity--arteriosclerosis--not existed; (3) that, under the last clause of section 7550 of the Code, defendant was entitled to a credit of $1,310.40, on account of regular wages paid to the workman after his injury, and to his widow after his death, as though he were still at work, up to January 1, 1927; and (4) that defendant was entitled to some credit on account of $250 paid by it to the widow to be applied on the funeral expenses of the workman.

1. While the testimony of the two physicians examined on behalf of defendant tends strongly to the conclusion that the deceased workman's death was due to a longstanding and far-advanced condition of arteriosclerosis, which culminated naturally and inevitably in a fatal cerebral hemorrhage, yet there was other testimony which, we think, supports the trial court's finding that the blow or blows on the workman's head proximately caused the fatal hemorrhage about two months afterwards.

One of the physicians, Dr. R.D. Johns, stated on cross-examination:

"A man that has a severe blow and has that condition, you couldn't absolutely eliminate a blow for being responsible for a deferred brain hemorrhage. *** A blow in his case had to be indirect. All I can see is that it might be a contributing cause. I wouldn't say it was not a contributing cause, and I didn't mean to say that the blow he received was not a contributing cause. *** I rather think he would have lived longer if he had not gotten the blow. *** It might be a contributing cause and be deferred for some time."

Dr. P.K. Tate, a witness for plaintiff, testified:

"In my best judgment, without any previous symptoms of high blood pressure, and with continuous symptoms in the head region of the injury, up to the time of the man's death, the blow was the cause, or a contributing cause, to the paralysis."

There was evidence tending to support the existence of the conditions thus predicated.

Where an injury, acting upon a prior diseased condition, materially hastens the death of the injured person from that disease, the injury is regarded as being, in a legal sense, the proximate cause of death. L. & N.R. Co. v. Jones, 83 Ala. 376, 382, 3 So. 902; Peoria R.R. Term. Co. v. Industrial Board, 279 Ill. 352, 116 N.E. 651; MacDonald v. Met.St.R. Co., 219 Mo. 468, 118 S.W. 78, 16 Ann.Cas. 810, 814; Ensign v. Southern Pac. Co., 193 Cal. 311, 223 P. 953; Tullgren v. Amoskeag Mfg. Co. (N.H.) 133 A. 4, 46 A.L.R. 380; Freeman v. Merc.Mut.Acc. Ass'n, 156 Mass. 351, 30 N.E. 1013, 17 L.R.A. 753; Meekins v. Norfolk, etc., R. Co., 134 N.C. 217, 46 S.E. 493; Chicago, etc., R. Co. v. Groner, 51 Tex.Civ.App. 65, 111 S.W. 667; 17 C.J. 1206, § 56. See, also, 215 Ala. 64, 109 So. 360.

2. Section 7561 of the Code provides:

"If the degree or duration of disability resulting from an accident is increased or prolonged because of a pre-existing injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed."

The apportionment of liability thus provided for is by the very terms of the statute referable to a state of disability, and not to a state of death. "Disability" and "death" are distinct conditions, so recognized throughout the...