201 S.W.2d 651 | Tenn. | 1947
This is a proceeding under the Workmen's Compensation Act. Code 1932, sec. 6851 et seq. In the Circuit Court of Henderson County the petitioner Gabbard sought compensation from his employer, Proctor Gamble, on the following averments in his original petition.
"That your petitioner was from the 30th day of June, 1942 until the 18th day of June, 1945 employed by said defendant and that on the 18th day of June, 1945 and for approximately 18 months prior thereto he was engaged in melting pentolite, and that in connection with his duties aforesaid it was necessary for him to stand over a melting pot which was kept at all times at a very high temperature; that on the 18th day of June, 1945 petitioner became ill and was sent to the first aid station by the defendant company and its agents, and they in turn advised him to see his family physician. That immediately thereafter your petitioner did consult his family physician. That immediately thereafter yourpetitioner did consult his family physician and has been continuously since the above date under her treatment and care by reason of the illness which occurred as aforesaid." (Emphasis ours to show repetition.)
Before the hearing, the original petition was amended to add the following:
"That said illness was fortuitous, not to be expected, an unusual event or result, and therefore amounted to an injury by accident." *466
Defendant demurred to the petition and amended petition, and the learned Trial Judge, without specifying the ground of his decision, dismissed the petition and amended petition. The petitioner has perfected his appeal to this Court.
Only one question is presented by the appeal: Was petitioner's disease as set out in the foregoing pleadings compensable under the statute which defines compensable injury as:
"(d) `Injury' and `personal injury' shall mean only injury by accident arising out of and in the course of employment, and shall not include a disease in any form except as it shall naturally result from the injury." Code sec. 6852. (d).
The averments of the amendment are to be considered by us in connection with the statement of fact in the original petition quoted above, and since they are clearly conclusions of the pleader, the averments of the amendment are not necessarily admitted by the demurrer. Crockett v. McLanahan,
If an employee suffers from a disease occupational or other, he has no recourse under the Act, unless the disease naturally results from an accidental injury. In order for a disease to be referable to an accidental injury its inception must be assignable to a determinate, single occurrence, identified in time and place. Morrison v. Tennessee Consolidated Coal Co.,
Petitioner insists that the case is ruled by King v. BuckeyeCotton Oil Co.,
On the statements of the pleadings, viewed most favorably to the petitioner, we cannot avoid the conclusion that petitioner's disease was a gradual result of breathing the fumes of the melting pentolite, and that the case, therefore, falls under the rule made in Meade-Fiber Corporation v. Starnes,
The assignment of error is overruled and the judgment is affirmed.
All Justices concur. *468