Opinion
6 Div. 4.
March 29, 1928.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Thos. J. Judge, of Birmingham, for appellant.
The employer would not be liable if the death of the employee was brought about through the kick of a mule, which would not have resulted in death except for his pre-existing infirmity or condition. Code 1923, § 7561. Under the evidence of the physicians, the death of the employee could not have been produced by the kick of the mule.
Altman, Taylor Koenig and D. R. Boyd, all of Birmingham, for appellees.
Where the trial court sets out the evidence on which its finding was rested, the Supreme Court will not look to the bill of exceptions. Hill v. Ala. D. D. S. B. Co., 213 Ala. 88, 104 So. 251; Gulf States Steel Co. v. Griffin, 214 Ala. 126, 106 So. 898. Where there is any legal evidence to support the finding of the trial court, such finding is conclusive. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Ex parte Smith Lbr. Co., 206 Ala. 485, 90 So. 807; Ex parte Sloss Co., 207 Ala. 219, 92 So. 458. Where an accident aggravates or accelerates a pre-existing infirmity and causes death, the employer is liable under the Compensation Act. Schneider, Workmen's Compensation Law, § 138; 1 Honnold, p. 509.
The petition was for certiorari to determine liability and dependence under the Workmen's Compensation Act (Code 1923, §§ 7534-7597) for injury to a minor working in the mines, over the age of 17. The finding of the facts and the award made are according to the requirement of the statute as to presenting for review, by certiorari, the action of the trial court without the aid of a bill of exceptions.
The substance of the evidence offered on the trial is set out in the decree rendered. Hill v. Dry Dock Shipbuilding Co., 213 Ala. 88, 104 So. 251; Gulf States Steel Co. v. Griffin, 214 Ala. 126, 106 So. 898.
It is only in the absence of such statement of the evidence that a bill of exceptions is employed. Ex parte Sloss-Sheffield S. I. Co., 207 Ala. 219, 92 So. 458; Ex parte L. N. R. Co., 208 Ala. 216, 94 So. 289; Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626; Ex parte Woodward Iron Co., 211 Ala. 74, 99 So. 97.
Where there is any legal evidence to support the finding of the trial court, that finding is conclusive as to this court. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Ex parte W. T. Smith Lumber Co., 206 Ala. 485, 90 So. 807; Ex parte Sloss-Sheffield S. I. Co. (Greek's Case) supra. The court so found the facts and set forth that finding in its decree or judgment, warranting the relief granted.
Moreover, if the condition found by the examining physician existed before the injury received by the kick of the mule, and if that physical shock and physical injury aggravated the condition, hastened and eventuated in the death of said intestate employee, under the liberal construction given, the act extended to such case. That is to say, where the accident and injury coupled with the pre-existing infirmity caused death, there was full liability as prescribed therefor by the statute. This is not the "increase or prolongation" of disability made the subject of section 7561, Code of 1923.
There is a distinction between "increased or prolonged disability" and "death." Where, but for the accident and injury, the person would not have died as and when he did die, the accident is the cause of such death, though it merely accelerated a pre-existing physical weakness, infirmity, or disease. Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626. See analogy to be found in New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360; Hill v. Traveler's Ins. Co., 146 Iowa 133, 124 N.W. 898, 28 L.R.A. (N.S.) 742. The authorities are collected in Schneider, Workmen's Compensation Law, § 138; In re Bowers, 65 Ind. App. 128, 116 N.E. 842; St. Clair v. Meyer, 211 Mich. 285, 178 N.W. 705; Hanson v. Dickinson, 188 Iowa, 728, 176 N.W. 823; Patrick v. Ham Co., 119 Me. 510, 111 A. 912, 13 A.L.R. 427; Banks v. Adams Express Co., 221 N.Y. 606, 117 N.E. 1060; Utilities Coal Co. v. Herr, 76 Ind. App. 312, 132 N.E. 262. See recent case by this court of U.S.C. I. P. F. Co. v. Hartley, 116 So. 666; Honnold on Workmen's Compensation, vol. 1, § 133, p. 509, and authorities.
Post, p. 462.
It follows that the judgment or decree of the lower court is without error; the petition for certiorari is denied, and the judgment of the circuit court is affirmed.
Petition denied. Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.