Stevenson v. Lee Moor Contracting Co.

• Decision Date: 07 July 1941
• Docket Number: No. 4523.,4523.
• Citation: 45 N.M. 354,115 P.2d 342
• Parties: STEVENSONv.LEE MOOR CONTRACTING CO. et al.
• Court: New Mexico Supreme Court

45 N.M. 354

115 P.2d 342

STEVENSON

v.LEE MOOR CONTRACTING CO. et al.

No. 4523.

Supreme Court of New Mexico.

July 7, 1941.

Appeal from District Court, Lincoln County; Numa C. Frenger, Judge.

Proceeding under the Workmen's Compensation Act by C. R. Stevenson, employee, opposed by the Lee Moor Contracting Company, employer, and the American Employers' Insurance Company, insurance carrier. From a judgment for the employer and insurance carrier, the employee appeals.

Reversed and remanded with instructions.

George A. Threlkeld, of Roswell, for appellant.A. K. Montgomery, of Santa Fe, and Jones, Hardie, Grambling & Howell and Lytton R. Taylor, all of El Paso, Tex., for appellees.

PER CURIAM.

Upon consideration of appellant's motion for rehearing the original opinion is withdrawn and the following substituted:

BRICE, Chief Justice.

Appellant Stevenson, a truck driver employed by appellee company, a road building contractor, became ill after driving and operating for one day one of the heavy trucks of the company, claiming that he inhaled excessive dust from the road work and fumes and gases from the motor exhaust, and that he quickly developed pneumonia by which he was incapacitated for some three months, and from which he would probably continue to be unable to work for some time in the future. He asks for workmen's compensation, as provided by the Workmen's Compensation Act, Chapter 156, N.M.S.A., 1929, and amendments.

Compensation was refused upon the ground that no accident was suffered by appellant which would, under the act, be compensable. The lower court found for appellees, the companies (the contractor and his surety), and appellant appeals.

The following are the findings and conclusions of the trial court having reference to the injury and the circumstances leading thereto:

“That on March 19, 1938, Lee Moor Contracting Company as employer of C. R. Stevenson, furnished to be driven by said C. R. Stevenson a large heavy duty International Truck of ten ton or more capacity for hauling excavated matter, ***.

“That said truck was an old truck and so worn from long usage that about four and one-half gallons of oil were used in it in seven hours of running on said day, said amount of oil, on account of the worn condition of the motor of said truck, being necessary for the operation of the said truck.

“That the exhaust pipe discharged gases, fumes and smoke from the motor at a point under the truck about even with the seat-back of the driver's seat, and from the exhaust manifold where a gasket should have retained the exhaust fumes but there being no exhaust gasket the fumes escaped into the air on the right side of the motor. Smoke and fumes also escaped from the breather wherein oil is poured into the motor and from the coupling connecting the exhaust manifold and the exhaust pipe on the right side of the motor.

“That the said motor created and discharged an excessive amount of smoke and gases as compared with the other trucks on the job. That the fumes and gases thrown off by the said motor were inhaled by the plaintiff.

“That the inhalation of the smoke and gases from the motor irritated the respiratory tract of the plaintiff.

“That the inhalation of the smoke and gases thrown off by the motor reduced the resistance of C. R. Stevenson to such an extent that the pneumo-cocci germs were enabled to multiply and become active in the body of C. R. Stevenson, resulting in pneumonia.

“That the inhalation by C. R. Stevenson of smoke and gases emitted by the truck were an exciting cause of the development of pneumonia which followed.

“That the inhalation by C. R. Stevenson of the smoke and gases emitted by the truck precipitated the activity of pneumococci germs which resulted in pneumonia.

“On March 19, 1938, plaintiff, C. R. Stevenson, was operating a truck known as Truck No. 54 of the Lee Moor Contracting Company; Truck No. 54 for a period of approximately 30 days prior to this time had been discharging a larger amount of fumes and smoke than other trucks on the same job. All trucks of the character of Truck No. 54 give off fumes and smoke when used in heavy duty. On said date, a large amount of fumes and smoke was given off by said truck, but there was no unusual or excessive amount of fumes and smoke given off by said truck on that date, the amount of fumes and smoke given off by the truck being substantially the same as the amount given off for a period of approximately thirty days. There was no accident and no unusual or unexpected occurrence on that date.

“On or about the 20th day of March, 1938, the plaintiff, C. R. Stevenson suffered an attack of pneumonia which is a disease caused by a specific germ. Any disability suffered by the plaintiff was due to disease and not to an industrial accident.”

We reduce these findings, by eliminating repetition and non-essentials, to the following material statements of the facts:

That on March 19, 1938, the employer (appellee Lee Moor Contracting Company, hereinafter called “employer”) furnished the employee (appellant) an old heavy-duty truck to be driven in excavation work in the course of his employment, so worn from long usage that it required four and a half gallons of oil for its operation for a day of seven hours.

All trucks of the type of said truck give off some gases and fumes when used in heavy duty; but said truck discharged an excessive amount of gases compared with other trucks on the job. The fumes and gases not only escaped through the exhaust pipe, but from the exhaust manifold, because of the lack of a gasket that was required to prevent it; also from the breather, and the coupling connecting the exhaust manifold.

The appellant inhaled gases emitted from the truck which irritated his respiratory tract and reduced his resistance to such an extent that the pneumococci germs present were enabled to multiply and become active, resulting in pneumonia. “That the inhalation by C. R. Stevenson of the smoke and gases emitted by the truck precipitated the activity of pneumococci germs which resulted in pneumonia.” (Emphasis ours.)

The findings of the court, when reduced to the smallest compass, are that the appellant was furnished by his employer with an old, defective truck that emitted excessive gases and fumes (more than any other on the job), which he breathed while operating the truck, the effect of which was to precipitate “the activity of pneumococci, which resulted in pneumonia.”

[1] The trial court made no separate conclusions of law. In two findings requested by appellee it is stated “There was no *** accident on that date,” and “any disability suffered by the plaintiff was due to a disease caused by specific germs, not an industrial accident.” It is plain that these are conclusions of law deduced from the specific facts theretofore found. While a conclusion that there was no accident under certain findings may be a mixed conclusion of fact and law, in this case it is clearly a conclusion of law and calls for the construction of the meaning of the word “accident” as used in the Workmen's Compensation Act. Birdwell v. Three Forks Portland Cement Co., 98 Mont. 483, 40 P.2d 43.

[2] It was the view of the trial court that, as pneumonia is a disease caused by a “specific germ,” under the terms of the Workmen's Compensation Act, an employee is not entitled to compensation, no matter what caused or precipitated the disease. Of course, pneumonia is a germ disease, and any disability plaintiff suffered was due to the disease; but it does not follow, as the trial court concluded, that appellant's injury was not “by accident,” if the proximate cause of the disease, and therefore the injury, was an accident.

[3] The appellant's attack of pneumonia was not an occupational disease; that is, one gradually contracted in the ordinary course of employment, and due wholly to causes and conditions that are normal and constantly present and known from experience to be incidental and characteristic of the particular occupation. Cannella v. Gulf Refin. Co. of Louisiana, La.App., 154 So. 406; Associated Indemnity Corp. v. State Industrial Accident Comm., 124 Cal.App. 378, 12 P.2d 1075; Birmingham Elec. Co. v. Meacham, 234 Ala. 506, 175 So. 322; Industrial Comm. of Colorado v. Ule, 97 Colo. 253, 48 P.2d 803. The facts found support the conclusion that it was not an occupational disease.

Our Workmen's Compensation statute was enacted in 1917 and re-enacted with amendments as Ch. 92, L.1937. Our references and citations will be to the latter act. It is provided in Sec. 1 that under conditions described therein the employer will become liable to a workman “injured by accident arising out of and in the course of his employment.” This provision was in the original act and retained in the amendment. Sec. 4 of the 1937 act is new, and was copied verbatim from, and is identical with, Sec. 15 of the Workmen's Compensation Act of Colorado, enacted in 1919 (Sec. 294, Ch. 97, Colo. Sts.Ann.1935) and is as follows:

“The right to the compensation provided for in this act, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:

“(a) Where, at the time of the accident, both employer and employee are subject to the provisions of this act; and where the employer has complied with the provisions thereof regarding insurance.

“(b) Where, at the time of the accident, the employee is performing service arising out of and in the course of his employment.

“(c) Where the injury or death is proximately caused by accident arising out of and in the course of his employment, and is not intentionally self-inflicted.” (Emphasis ours.)

Sec. 3 refers to claims “for a personal injury sustained by an employee while engaged in the line of his duty”; Sec. 6( l) refers to “injuries sustained in extra-hazardous occupations...