Aranbula v. Banner Min. Co.

• Decision Date: 15 September 1945
• Docket Number: No. 4887.,4887.
• Citation: 161 P.2d 867,49 N.M. 253
• Parties: ARANBULAv.BANNER MIN. CO.
• Court: New Mexico Supreme Court

49 N.M. 253

161 P.2d 867

ARANBULA

v.BANNER MIN. CO.

No. 4887.

Supreme Court of New Mexico.

Sept. 15, 1945.

Appeal from District Court, Hidalgo County; A. W. Marshall, Judge.

Suit under the Workmen's Compensation Act by Ben Aranbula, claimant, against Banner Mining Company, employer. From an adverse judgment, the employer appeals.

Judgment reversed with direction to set it aside and enter judgment for the employer.

Only injuries suffered by accident, meaning accidental injuries, are compensable under Workmen's Compensation Act 1941 Comp. §§ 57-902, 57-905.

[161 P.2d 867 , 49 N.M. 254]

H. A. Kiker, of Santa Fe, and L. P. McHalffey, of Lordsburg, for appellant.

E. Forrest Sanders, of Lordsburg, for appellee.

MABRY, Chief Justice.

This is an appeal from a judgment adverse to defendant-company in suit brought under our Workmen's Compensation Act. It is alleged that the injury relied upon was suffered by accident arising out of, and in the course of, plaintiff's employment and while he was employed by defendant, on or about the 23rd day of January, 1943. The claimant was a miner and timber man in underground workings on property belonging to defendant and had worked for a long period of time immediately preceeding the date above mentioned and he charges injury and total disability due to having been exposed to, and having breathed, silicon dioxide dust in harmful quantities, thereby causing silicosis. Claimant alleges his average weekly earnings, upon which compensation should be computed, to be $45.

The defense urged was one of both law and fact. As a legal defense, defendant relied upon the following propositions: (a) Silicosis is not compensable under the terms of our Workmen's Compensation law; (b) silicosis is a disease not caused by accident and not arising from accident; (c) the nature of silicosis is such that not less than two years, and often many more years, are required for the disease to manifest its presence after its inception, and that no notice was served upon defendant and no claim was filed in the district court within 12 months from the inception of said disease, if in fact claimant has it.

For further defense, defendant shows that plaintiff suffered no accident resulting in injury to him at the time alleged or at any other time in the course of employment for defendant; it denies that claimant was exposed to and breathed silicon dioxide dust in harmful quantities while working for defendant, and denies that claimant was caused to have silicosis by an injury resulting from an accident sustained by him in the course of his employment by defendant; and that defendant was without knowledge or information sufficient to enable it to form a belief as to whether claimant suffers from silicosis; that defendant was without knowledge or information sufficient to enable it to form a belief as to whether claimant is totally and permanently disabled from silicosis, then closes with a general denial of plaintiff's allegations.

For a separate and affirmative defense, defendant alleged that throughout the time of plaintiff's employment, defendant's mines were equipped with every known device to prevent the breathing of silicon dioxide dust in harmful quantities and described the nature of the equipment; that claimant and all other persons were provided with respirators to prevent inhalation of silicon dioxide dust and were instructed to use them; that plaintiff, prior to his employment by defendant, and for many years, was a miner working in mines in which no precaution whatever, or little if any, had been taken to prevent workmen from breathing silicon dust and that in addition, plaintiff had worked with dry drills and other equipment which afforded no protection against breathing such dust; and that during the times that plaintiff was employed in these other mines, he actually breathed such dust and that he worked, when he was so employed by others, for considerable period of time in and around rock crushers whereby he was exposed to harmful quantities of silicon dust; and that silicosis is of a character of occupational disease reasonably to be expected as a natural result from working in mines and around rock crushers and other places where silica-bearing quartz and other rocks are crushed and powdered.

There is little, if any, disagreement of the parties as to the conditions under which plaintiff worked, which were normal for the industry, where all reasonable precautions had been taken for protection against silica dust, and that plaintiff, as an experienced miner, knew of the likelihood of injury from breathing such dust over a long period of time, in the normal operation of mining the metallic ore.

We have presented for decision two propositions: (a) Is claimant totally and permanently disabled? (b) Is silicosis compensable under the terms of the Workmen's Compensation Act? We have been supplied with able and exhaustive briefs by counsel for each party to this cause, greatly minimizing the necessity for exhaustive independent search for cases. We are thus materially aided in arriving at a decision in the full light of the development by statute and decision of Workmen's Compensation Acts and legislation covering occupational diseases.

Is silicosis compensable under the terms of the New Mexico Workmen's Compensation Act? It is the contention of the defendant that under our act and the great weight of authority, it is not; and, particularly, as it applies to the case at bar, where there is no showing of excessive exposure and the occurrence of injury relied upon was not sudden or unexpected. We believe that the great weight of authority favors the view that silicosis acquired over a period of years and without the element of excessive exposure and sudden and unexpected occurrence of injury or illness is an occupational disease and not an injury by accident. We hold that the injury complained of does not fall within our Workmen's Compensation Act. Our holding in Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342, and Webb v. New Mexico Publishing Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002 (to be hereinafter noticed) does not contradict this view.

From Schneider's Workmen's Compensation text, Vol. III, and Horovitz on Workmen's Compensation, and cases and statutes called to our attention, appellant has set out a classification of states dealing with the workmen's compensation and occupational disease statutes and decisions, a notice of which we have found helpful in our approach to this question. We find the following states designate by statute particular diseases as being compensable independently of the element of accident: Arizona, Arkansas, Delaware, Idaho, Kentucky, Maryland, Michigan, Minnesota, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Utah, Virginia, Washington, and West Virginia. (Arizona enacted its Occupational Disease statute in 1943, Chap. 26; Virginia in 1944, Chap. 77; and both list silicosis as an occupational disease.)

The following states propose specific statutory definitions of ‘occupational diseases': Arizona, Connecticut, Illinois, Indiana, Michigan, Minnesota, Nebraska, Ohio, Rhode Island, Utah, Virginia, and Washington. (In Minnesota and Nebraska the definitions were afforded by amendatory enactments in 1943, Laws Minn. 1943, c. 633; Laws Neb. 1943, c. 113.)

Michigan and New York amended their statutory silicosis provisions, relating to compensation, in 1943 and 1944. Ohio also amended its provisions on silicosis in 1943.

The following states have special provisions relating to pneumonoconiosis, silicosis and asbestosis: Idaho, Illinois, Indiana, Maryland, Massachusetts, Michigan, Minnesota, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Washington, West Virginia, and Wisconsin.

It might not be amiss to here notice that fifteen of the forty-eight states not only specifically name silicosis, but have special statutory provisions relating thereto. A notice of these several special statutory provisions regarding silicosis, and what is said by the many text writers upon the subject, must impress one that the disease has, and does, present a special problem and that it is, generally, being dealt with specially as not coming within the provisions of the conventional workmen's compensation acts.

Our attention is further called to the fact that even if we could hold silicosis to be compensable under some particular, or unusual, circumstances, in line with some of the decisions cited and relied upon by plaintiff, yet the facts in this case could bring none of such cases to the support of plaintiff's position.

Perhaps one of the best definitions for the term ‘occupational disease’ is to be found in the frequently quoted case of Victory Sparkler and Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 638, 44 A.L.R. 363. The definition there given is as follows:

‘An occupation or industry disease is one which arises from causes incident to the profession or labor of the party's occupation or calling. It has its origin in the inherent nature or mode of work of the profession or industry, and it is the usual result or concomitant. If, therefore, a disease is not a customary or natural result of the profession or industry, per se, but is the consequence of some extrinsic condition or independent agency, the disease or injury cannot be imputed to the occupation or industry, and it is in no accurate sense an occupation or industry disease.’

Silicosis is defined generally as a disease, and one suffering from long exposure to the silica dust has not suffered an accident as the term is employed generally in the Workmen's Compensation Acts. In the case of Stevenson v. Lee Moor Contracting Co., supra, it became necessary to determine whether the injury there complained of resulted from an accident, as distinguished from an occupational disease, since it was recognized, obviously, that occupational diseases were...