Webb v. N.M. Pub. Co.

• Decision Date: 16 September 1943
• Docket Number: No. 4710.,4710.
• Citation: 141 P.2d 333,47 N.M. 279
• Parties: WEBBv.NEW MEXICO PUB. CO. et al.
• Court: New Mexico Supreme Court

47 N.M. 279

141 P.2d 333

WEBB

v.NEW MEXICO PUB. CO. et al.

No. 4710.

Supreme Court of New Mexico.

Sept. 16, 1943.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Proceeding under the Workmen's Compensation Act by Martin Webb, employee, opposed by the New Mexico Publishing Company, employer, and the Maryland Casualty Company, insurance carrier. From a judgment for the employee, the employer and insurance carrier appeal.

Affirmed.

In workmen's compensation proceeding, trial court's finding on undisputed facts that injuries to hands of printeroperator resulting from the use of soap furnished by employer, to which employee was allergic, was caused by an accident was a “conclusion of law,” reviewable by the Supreme Court. Comp.St.1929, § 156-101 et seq.

Wilson & Watson and John C. Watson, all of Santa Fe, for appellants.

Carl H. Gilbert, of Santa Fe, for appellee.

BRICE, Justice.

Appellee, an employee of the appellant New Mexico Publishing Company (hereafter referred to as appellant), sued that company and its surety, appellant Casualty Company (hereafter referred to as Surety), under the Workmen's Compensation Act, Comp.St.1929, § 156-101 et seq., for an injury alleged to have been accidental, and to have arisen out of, and in the course of, his employment as a printer-operator.

The substance of the facts found by the court, which are material to a decision, is as follows:

The appellee was a printer-operator in the employ of appellant New Mexico Publishing Company, and appellant Maryland Casualty Company was its insurer.

In the course of appellee's employment it was necessary that he cleanse his hands frequently, for which purpose the employer furnished soap manufactured for that purpose. During his employment, for six or seven years prior to August 28, 1940, that furnished was a “lava soap.” This was the type and kind of soap generally, commonly and usually furnished by printing establishments for the purpose stated. After August 28, 1940, the employer furnished a soap known as “Lan-O-Kleen” which had a base of lanolin and corn meal; and appellee thereafter frequently and continually used it in washing his hands. The appellee was highly allergic to the Lan-O-Kleen soap and as a result of his use thereof, large painful eruptions broke out on the backs of his hands, which developed to such an extent that on or about the 22nd day of February, 1941, he became completely disabled. The use of Lan-O-Kleen would not have caused the injury to appellee except for his allergy thereto. It could not have been reasonably expected or foreseen that the use of Lan-O-Kleen soap would injuriously affect anyone. The resulting injuries constituted an unlooked for mishap which was neither expected nor designed and were accidentally caused.

The foregoing findings are challenged in two particulars by the appellants, upon which they have assigned error.

[1] It is asserted that the trial court erred in finding that lava soap was the type and kind of soap generally, commonly and usually furnished by printing establishments for the purpose of cleansing the hands of printer-operators. All of the evidence on this question is as follows:

Appellee testified: “I have followed the profession and trade of a printer-operator practically all my life and have been making a living at it since 1922 or 1923, when I left high school. I have worked in a large number of places, sometimes only a week in one place, and on to another. I would say I have worked at, at least, thirty-five different plants. In my experience over eighteen or twenty years as a printer-operator the average soap you run into most of the time in the shops I have worked in has been nothing but lava soap.”

Q. “That is the standard and ordinary type? A. The one you run across in very much the majority of the plants. I have used lava soap for twenty years and did not feel it was necessary to have it tested.”

Dr. Travers testified that corn meal which was one of the ingredients of Lan-O-Kleen soap was the abrasive or that which is essential in a mechanic's soap to remove the grime worked into his hands from the metal with which he works; that corn meal and lanolin, referred to as portions of the contents of this soap, are things that certain people are violently allergic to; that lanolin and corn meal are not usually and ordinarily component parts of soap.

Webster defines “commonly” as “In a manner or degree that is common; usually; generally; ordinarily; frequently; for the most part; familiarly.” And “common” is defined “Belonging or pertaining to many or to the majority; generally or prevalent. *** of frequent or ordinary occurrence or appearance; familiar by reason of frequency. Pertaining to, affecting or applicable to many or the greatest number of persons, cases or occasions; prevalent, usual; extensive though not universal.” Usual is defined as “Such as is in common use; such as occurs in ordinary practice or in the ordinary course of events, customarily, ordinarily, habitual, common.”

The evidence substantially supports the finding, in the sense that the use of the soap was extensive, though not universal; and that it was used by the greater number of printing establishments. The trial court did not err in so finding.

The trial court's Finding No. 8 is as follows: “That it could not have been reasonably expected or foreseen that the use of said soap so furnished by said defendant employer would injuriously affect anyone and that said injuries so suffered by the plaintiff from the use thereof constituted an unlooked for mishap which was neither expected nor designed, and were accidentally caused.”

Appellant states that the words “* * and were accidentally caused” is a conclusion of law.

[2][3] Where the conclusion that one has suffered an accident is based upon undisputed facts found by the court and incorporated in his decision, the conclusion is one of law, notwithstanding that whether or not an injury is an accident, may be, under some circumstances, a mixed question of law and fact. Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342; Birdwell v. Three Forks Portland Cement Co., 98 Mont. 483, 40 P.2d 43. We agree with appellant that such finding is a conclusion of law.

With the exceptions ruled upon, the facts found by the trial court are not contested.

[4] The facts on the question of whether there was an accident are these: It was necessary for appellee, in the course of his employment, to frequently wash his hands, for which purpose his employer furnished soap. The soap so furnished was one to which he was unknowingly allergic, and its use caused a breaking out of large, painful eruptions on his hands, so that within approximately six months appellee had become completely disabled from performing any work. The injury from the use of the soap could not have been reasonably expected or foreseen, and his injury constituted an unlooked for mishap, which was neither expected nor designed.

We stated in Stevenson v. Lee Moor Contracting Co., supra [45 N.M. 354, 115 P.2d 350], regarding the phrase “injury by accident”, the following: “We are satisfied with the conclusions of these courts, and hold that ‘injury by accident’ means nothing more than an accidental injury, or an accident, as the word is ordinarily used. It denotes ‘an unlooked for mishap, or an untoward event which is not expected or designed.’ Fenton v. Thorley, supra.”

We had reference to the definition in Lord MacNaughton's opinion in Fenton v. Thorley, [1903] A. C. 443, by the House of Lords, in which he stated: “I come, therefore, to the conclusion that the expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.”

This definition of the word “accident” as used in the English Workmen's Compensation Act has been followed by the courts of England since the decision in that case, and by us in the Stevenson case. It is defined by Webster as follows: “A befalling; an event that takes place without one's foresight or expectation; an undesigned, sudden, and unexpected event; chance, contingency; often, an undesigned and unforeseen occurrence of an afflictive or unfortunate character; casualty; mishap.”

Lord MacNaughton's definition is substantially the same as that of Webster, “an undesigned and unforeseen occurrence of an afflictive or unfortunate character”.

It is obvious that the finding of the trial court brings the injury of the appellee within the definition of “accident” as approved in the Stevenson case, and that it is a finding of ultimate fact not contested here. It is asserted by appellee that this being true, it necessarily follows that appellee's injury was accidental; and, as it arose out of and in the course of his employment, it was a compensable injury.

But appellants forcefully assert that while the injury may, in the sense that it was not expected or designed, have some of the constituents of a compensable accidental injury, yet there are lacking in the findings other facts necessary to support the judgment, among which they assert are the following:

(1) Appellee's injury was not related to any specific time or event.

(2) Appellee was not subjected to any unusual or extraordinary condition or hazard not usual to his employment, and to which other workmen on the job, or the community generally, were not subjected.

We need not, and do not, decide the question advanced by appellee. We agree with appellants that the decision should rest upon the broader ones which they present, and by it settle for this jurisdiction questions of law regarding which the courts of the country hold diverse views that cannot be reconciled; some because of a difference in the statutes involved, others because of a conflict of judicial thought and reasoning.

It is said that appellee did not relate his injury to any specific time or event, a necessary fact...