161 So. 209 | La. Ct. App. | 1935
The exception of no cause of action, which was maintained below, is based upon the con tention that plaintiff is seeking to recover compensation for disability resulting from an occupational disease which is not covered by *210
the compensation statute. (Act No.
On behalf of the plaintiff it is argued that an exception of no cause of action, when addressed to a petition filed under the compensation statute, should not be maintained unless it goes to the merits and presents the real defenses of the case. Clark v. Alexandria Cooperage Lumber Co.,
The petition in this case (which was not prepared by present counsel) is conceded to have been carelessly drawn, but it is said that in view of the provisions of the act to the effect that the court "shall not be bound by the usual common-law or statutory rules of procedure other than as herein provided" an opportunity should be afforded plaintiff to amend his petition in order that the controversy might be tried upon its merits. On this point the case of Pierre v. Barringer,
See, also, Faulkner v. Milner-Fuller, Inc. (La.App.)
The defendant concedes the rule with respect to technical procedure in compensation cases, particularly concerning exceptions of no cause of action to be as counsel states it, but insists that in this case the exception goes to the merits of the case, and that no proper relaxation of the rules of procedure would permit an amendment of an employee's petition which would have the effect of changing the cause of action so as to state a case covered by the act when the original proceeding was clearly not covered.
The Compensation Law provides for compensation to disabled workmen resulting from "personal injury by accident arising out of and in the course of such employment." Section 2, as amended by Act No.
Turning to the petition before us, we find that the plaintiff alleges that his work compelled him to occupy a room in which cement was made, and that in the process of manufacturing cement a dust or powder is generated which "does eventually affect the eyes and skin and causes or forms an infection or disease among the persons so engaged, commonly known as cement poisoning," and that plaintiff "was first affected with a skin disease known as cement poisoning or dermatitis venenata on or about June, 1932." It is elsewhere alleged in the petition that the plaintiff was originally employed by the defendant in August, 1928, or four years before the first manifestation of dermatitis venenata. It appears to us that the plaintiff has alleged a classic case of occupational disease. In the Cannella Case, supra, we said:
"The term `vocational or occupational disease' has been defined by several of the courts as follows:
"Occupational disease is one wherein the cumulative effect of employee's continued absorption of deleterious substances from his environment ultimately results in manifest pathology.
"In occupational disease, any one exposure is inconsequential in itself, but the continual absorption is the factor which brings on the disease. In such cases, he can be held injured only when the accumulated effect of the deleterious substances manifest themselves. Associated Corporation v. State Com., 124 Cal. App. 378,
"`Occupational disease is a diseased condition arising gradually from the character of *211
the employee's work.' Peru Plow Wheel Co. v. Industrial Com.,
"If the disability comes on gradually, it is not an accident but an occupational disease. Mauchline v. Insurance Fund,
Under the circumstances, we believe that the exception of no cause of action was properly maintained, for the reason that a trial upon the merits must inevitably result in a denial of plaintiff's claim because in compensation cases, as in all other cases, a plaintiff is bound by his allegations, having sued on one cause of action he cannot be allowed by amendment of his petition to allege a contradictory cause of action.
For the reasons assigned, the judgment appealed from is affirmed.