Mitchell Motor Co. v. Burrow

66 So. 2d 198, 37 Ala. App. 222, 1953 Ala. App. LEXIS 381
CourtAlabama Court of Appeals
DecidedJune 16, 1953
Docket6 Div. 599
StatusPublished
Cited by6 cases

This text of 66 So. 2d 198 (Mitchell Motor Co. v. Burrow) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell Motor Co. v. Burrow, 66 So. 2d 198, 37 Ala. App. 222, 1953 Ala. App. LEXIS 381 (Ala. Ct. App. 1953).

Opinion

HARWOOD, Judge.

The proceedings below were instituted under the Alabama Workmen’s Compensation Law, Chapter 5, Title 26, Code of Alabama 1940.

G. C.-Burrow, Jr., sought compensation because of injuries allegedly received while an employee of B. W. Jetton and Homer F. Mitchell, doing business as Mitchell Motor Company. At the conclusion of the hearing the court entered a decree awarding petitioner compensation in the amount of $420 for, total disability for twenty weeks.

On petition of the respondents below a writ of certiorari was granted to review the decree of the lower court.

[225]*225The petitioner below has also made cross-assignments of error asserting as error the failure of the lower court to award hospital and medical expenses.

The evidence introduced by the petitioner in the proceedings below tended to show that he was employed by the respondents in May 1949. His duties were more or less general, though he worked principally at servicing, greasing, and undercoating automobiles.

In undercoating an automobile the vehicle is usually placed upon a raised rack and a substance is shot or blown on the undersides under high pressure, resulting in a protective coating on the underside of the car.

On November 11, 1950, the appellant was instructed by his foreman to put undercoating on the inside of the cab of an ambulance. In processing this job he was inside the cab, with the doors only partially open. Petitioner was confined in the ambulance cab some 30 minutes. Upon completion of the job the petitioner washed the exposed portions of his body with gasoline, as was normal, to remove any of the undercoating spray that may have adhered to him.

Within 15 or 20 minutes large stinging welts appeared on petitioner’s arms and neck. This occurred just before quitting time, and appellant did nothing about the condition until the next morning.

He then went to Dr. R. E. Williams who administered a shot to him.

His condition growing worse Dr. Stitt was called to see appellant. He found appellant with a dermatitis over his entire body, swollen in areas. Petitioner was more or less in a coma and unconscious of his surroundings. Dr. Stitt prescribed corn starch baths and greasing. A day or so later he sent petitioner to a hospital where he remained some five weeks. Altogether, petitioner was disabled some seven months.

Evidence introduced by the respondent was directed toward showing that the petitioner was allergic to certain oils or greases used in and around filling stations and had previously suffered from dermatitis brought on by exposure to such substances.

Dr. R. E. Williams testified that on May 4, 1949, petitioner consulted him. At that time he found petitioner suffering from a dermatitis on the neck, back and arms, and petitioner gave a history in which he stated that this condition flared up whenever he worked around filling stations.

Jewel Berry, operator of the Bee Line Service Station, testified that petitioner worked for him between six and twelve months and that at one time he had some breaking out on his shoulder, and a short time thereafter he quit, and told Berry that the doctor said he was allergic to something around filling stations. This was in May 1949.

In rebuttal petitioner testified that at the time he was working for Berry he scratched his neck in lowering a hood on a car; that this scratch became infected and that was the occasion of his consulting Dr. Williams.

Petitioner further testified that he had worked at his brother’s filling station some 5 or 6 years and had never had any skin trouble during that time, and that the only time he had ever suffered any skin irritation was when he visited Dr. Williams.

Appellant’s (Respondent’s) Assignments of Error.

Appellant’s assignments of error assert in various ways that the court erred in entering judgment awarding petitioner any compensation.

Appellant’s counsel, in brief and argument, contend that appellee’s disability resulted from an occupational disease, and not an accident, which diseases are noncompensable under our law.

By Section 262 (j), Title 26, Code of Alabama 1940, it is provided that “injuries by an accident” shall not include a disease, unless the disease results proximately from the accident.

[226]*226■Medical testimony submitted below was to the effect that an allergy such as affected the petitioner often follows within a few minutes’ contact with the causative agent. The almost immediate onset of the petitioner’s allergy following application of the undercoating material inside the ambulance cab furnishes an ample basis for inference that it was contact with this substance in the more or less enclosed area of the ambulance cab which brought about petitioner’s disease.

In reviewing compensation cases, brought up by the common-law writ of certiorari, where there is any legal evidence supporting the finding of the lower court, or if there is any reasonable view of the evidence that will support the lower court’s conclusions its findings and judgment will not be disturbed. See 19 Ala.Dig., Workmen’s Compensation, ^1940 for innumerable authorities.

Occupational diseases, broadly defined, are those diseases incident to certain employments and which human foresight cannot fend against. On the other hand, a disease contracted as a direct result of unusual circumstances connected with work, and not as an ordinary or reasonably to be anticipated result of pursuing the work, is to be considered as an injury caused by accident. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565.

The evidence below shows that the petitioner had worked at his brother’s filling station some five or six years, during which he suffered no allergic condition. He worked at the Bee Line Service Station some 6 to 12 months. During this time he did have a physical condition which petitioner claims was an infection from a scratch on his neck, but which appellant’s witness, Dr. Williams, testified was an allergy, which from history only, he thought came from contact with some substances used around filling stations. Assuming the condition was an allergy, it apparently was mild, and in no manner disabling.

Afterward, petitioner worked at appellant’s garage for some six months before he was so catastrophically stricken on November 11th.

This followed applying undercoating material in the small and unventilated confines of an ambulance cab. The evidence shows that the usual mode of applying this material is by placing the car on a raised rack and shooting the material, under pressure to the underside of the vehicle. Naturally under such conditions the mist or spray incident to such work is less concentrated than under the conditions under which petitioner performed the work as instructed by his foreman.

An actual aggravation of an existing infirmity, caused by an accident in the course of employment is compensable even though the accident would have caused no injury in a normal person. Walker v. Minnesota Steel Co., 167 Minn. 475, 209 N.W. 635; Ingalls Shipbuilding Co. v. Cahela, 251 Ala. 163, 36 So.2d 513.

We find no basis for disturbing the lower court’s finding that the appellee’s disability was the result of an accident, and awarding compensation therefor.

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66 So. 2d 198, 37 Ala. App. 222, 1953 Ala. App. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-motor-co-v-burrow-alactapp-1953.