Southern Cement Co. v. Walthall

*647 SOMERVIBBE, 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 (Usability, and not to a state of death. “Disability” and “death” are distinct conditions, so recognized throughout the Compensation Baw, and death cannot be included in “disability” as here used. As pointed out in 1 Schneider on Workman’s Compensátion, 446, there has been a conflict in the decisions of the several states as to whether liability should be limited in disability cases by such, an apportionment: the limitation being denied by the courts of Michigan, New York, and Indiana. So far as we are advised, no court has held that this limitation is or should be applicable to death cases.' No doubt, as observed by counsel for appellee, our Begislature took notice of the conflict of decisions elsewhere when it incorporated section 7561 in our law. However, this court, in the recent case of U. S. C. I. P. & F. Co. v. Hartley et al., 116 So. 666, 1 has passed upon the very question, and has held that this statute is not applicable to death cases. 3. Section 7550 of the Code provides that: “All moneys voluntarily paid by the employer or insurance carrier to an injured employé in advance of agreement or award shall be treated as advance payments on account of the compensation due.” Section 7578 of the Code provides: “Within five days prior to the date fixed for the hearing of the controversy, the employer shall file a verified answer to the complaint setting up the facts which he relies on in defense thereof.” Under our general system of pleading, payment of an existing obligation, in whole or *648 in part, is regarded as a matter of defense which must be specially pleaded. Pollak v. Winter, 166 Ala. 253, 51 So. 998, 52 So. 829, 53 So. 339, 139 Am. St. Rep. 33. The petition in this case sets up the disability of the workman for several months prior to his death, and also the fact of his death and the dependency of the widow and children. We see no escape from the conclusion that the defendant employer was bound to set up by answer or plea the fact and amount of his advance payments, both to the workman and to the widow after his death, in order to have the benefit of them under section 7550. Like other matters of defense such payments must be brought clear- ■ ly to the attention of the trial court, as well as of the plaintiff, in the manner prescribed by the statute. ” Here no such claim was made, and, notwithstanding the hardship of the result, the trial court cannot be put in error for disregarding the payments. With respect to the payment of $250 to the widow “to help with funeral expenses”: While defendant was liable for only $100 on that account, the excess over $100 could not properly be applied as a credit on' the compensation awarded. The discharge of liability for funeral expenses, as allowed by the court, is all that can be claimed. No error being apparent, the writ of certiorari will be denied, and the judgment of the circuit court will be affirmed. Writ denied. Affirmed. ANDERSON, O. J., and THOMAS and BROWN, JJ., concur. Footnotes [1] Ante, p. 462.