Beaver v. Morrison-Knudsen Company

• Decision Date: 19 February 1934
• Docket Number: 5976
• Parties: BERTHA BEAVER, Special Administratrix of the Estate of LEE OTIS BEAVER, Deceased, Appellant, v. MORRISON-KNUDSEN COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents
• Court: Idaho Supreme Court

41 P.2d 605

55 Idaho 275

BERTHA BEAVER, Special Administratrix of the Estate of LEE OTIS BEAVER, Deceased, Appellant, v. MORRISON-KNUDSEN COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents

No. 5976

Supreme Court of Idaho

February 19, 1934

WORKMEN'S COMPENSATION LAW-COMPENSABLE INJURY-"ACCIDENT"-AGGRAVATION OF PRE-EXISTING DISEASE-CLAIMANT'S NOTICE, SUFFICIENCY OF-INDUSTRIAL ACCIDENT BOARD-FINDINGS-EVIDENCE-EXPERT TESTIMONY.

1. In workmen's compensation case, where there is ground for comparing and balancing respective values of known facts, and where more probable conclusion is that for which claimant contends, inference in his favor is justified.

2. Positive expert testimony will prevail over negative expert testimony.

3. Claimant's notice of accidental injury consisting of aggravation of latent or arrested tuberculosis as result of inhalation of silica dust, given to foreman under whom claimant worked, held sufficient notice within Workmen's Compensation Law, in view of foreman's knowledge of claimant's physical condition and facts surrounding employment (I. C. A., sec. 43-1205).

4. Findings of Industrial Accident Board, if not supported by sufficient competent and substantial evidence, are not binding or conclusive upon courts.

5. Disability resulting from revival of latent tubercular condition, due to employee's inhaling silica dust during period of employment, held "accident" within Compensation Act, notwithstanding inability to specify particular day or month when injury was received or fatal draft of dust was inhaled (I. C. A., sec. 43-1001).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Proceedings under Workmen's Compensation Law. Appeal from judgment of district court affirming decision of Industrial Accident Board in favor of respondents. Reversed and remanded, with instructions.

Reversed and remanded, with instructions. No costs allowed.

Laurel E. Elam and Carl A. Burke, for Appellant.

Inhaled rock dust striking against and affecting texture of lungs was an accident. (Ramsay v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856; Sullivan Min. Co. v. Aschenbach, 33 F.2d 1.)

Injury to a weakened or latent condition is nevertheless an accident and is compensable. (In re Larson, 48 Idaho 136 143, 279 P. 1087; Hanson v. Independent School Dist. 11-J, 50 Idaho 81, 294 P. 513; Strouse v. Hercules Min Co., 51 Idaho 7, 1 P.2d 203; Knock v. Industrial Acc Com., 200 Cal. 456, 253 P. 712.)

Knowledge of foreman is knowledge of employer. (Lachance Case, 121 Me. 506, 118 A. 370; Gibbons v. United Electric Rys. Co., 48 R. I. 353, 136 A. 175.)

James H. Hawley, Jr., for Respondents.

"The burden rests upon the one claiming compensation to show by competent testimony, direct or circumstantial, not only the fact of an injury, but that it occurred in connection with the alleged employment." (Walker v. Hyde, 43 Idaho 625, 253 P. 1104.)

In this connection, it may be well stated in the language of our Supreme Court in Reinoehl v. Hamacher Pole & Lumber Co., 51 Idaho 359, 6 P.2d 860: "There must be a probable and not a possible connection between the cause and effect." (Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189.)

John H. Wourms, Donald A. Callahan, Charles W. Beale, James E. Gyde and Ralph S. Nelson, Amici Curiae, on Rehearing.

BUDGE, C. J., AILSHIE, J. Givens, Holden, Wernette, JJ., and Budge, concurring. Morgan, J., dissents.

OPINION

BUDGE, C. J.

From a judgment of the district court affirming an award of the Industrial Accident Board in favor of the employer, Morrison-Knudsen Company, and the surety, State Insurance Fund, this appeal is prosecuted. Shortly after the hearing before the board the claimant, Lee Otis Beaver, died, and an order of substitution of Bertha Beaver, Special Administratrix of the Estate of Lee Otis Beaver, was duly made.

The facts are substantially as follows: At the time of the hearing before the Industrial Accident Board the claimant was thirty-two years of age. Prior to 1928 he had been a farmer in Arkansas, and, in 1923, had suffered from a condition evidenced by knots, bumps, knobs or nodules on his neck which were at that time diagnosed by a doctor as cancerous. There is evidence that claimant was suffering in 1923 from tuberculosis. In 1928 his tubercular condition was in an arrested or latent state. In June, 1928, claimant was first employed by Morrison-Knudsen Company, at which time he seemed to be in good physical condition, weighed between 150 and 160 pounds, and was able to carry on regular manual labor. There is evidence that his diet and eating habits were correct and that his living conditions were good. During 1928, 1929, 1930 and 1931 claimant worked for Morrison-Knudsen Company intermittently in various capacities, including truck driving, general work, repair work, rock-crusher work and hot plant work. During the time of his employment claimant performed labor at or upon the rock-crusher and hot plant three or four months in each of the years 1928, 1929 and 1930, when these units were operating, and for a short period in February, 1931, repairing the rock-crusher. When the rock-crusher and hot plant were operating thick clouds of dust were produced, in which the men were required to work, and which dust penetrated their clothing, covered the exposed parts of their bodies, and the breathing of such dust caused the men to cough. This dust upon analysis was found to contain from 80 to 85 per cent silica. Claimant worked in such dust during the times he was so employed and was more or less bothered by coughing, which became more frequent as time passed. In February, 1931, claimant did repair work on the rock-crusher, which was consistently dusty work, and in February, 1931, his cough became worse and claimant started spitting up blood and black particles and lumps. After February claimant continued working for said company in 1931 but not upon the rock-crusher or hot plant, and, in July, 1931, while truck driving in Utah suffered a hemorrhage and thereafter his weight fell off and continued to do so until October, 1931, at which time he weighed less than 135 pounds. In October, 1931, claimant returned to Boise and during that month consulted a physician, was placed in a hospital under observation and treatment, X-rays were taken of his chest and his case was diagnosed as "acute tuberculosis." There is evidence that claimant suffered from no cold or any known illness during the time of his employment as above recited and that he had no knowledge that there was such a thing as silica dust or that there was any danger in working in rock dust. The foreman under whom he worked likewise had no knowledge of silica dust or any danger to anyone coming in contact therewith. Neither claimant nor anyone else realized that he was suffering from an arrested or latent case of tuberculosis until October or November, 1931. Notice of claim of injury was filled out and furnished to one Smith, foreman of said company, in November, 1931, and held up in the company's office for a considerable time, approximately a month.

It is suggested that there are two issues before the court upon this appeal: First, was there an accidental injury; and, second, did complainant comply with I. C. A., sec. 43-1205, which raises the question of notice to the employer. It is appellant's contention that claimant had an arrested case of pulmonary tuberculosis and that his inhalation of silica dust during his employment on the rock-crusher and hot plant of the Morrison-Knudsen Company caused a series of irritations which lighted up his latent or arrested tuberculosis resulting in his illness, and ultimately in his death.

The findings of fact and rulings of law of the Industrial Accident Board are, in part, as follows:

"That at the date of hearing the Claimant . . . . was suffering from tuberculosis in an advanced stage; that the said claimant had contracted tuberculosis earlier in his life-time and long prior to the time of his first employment with the above said employer, and that the present attack of tuberculosis is a reoccurrence of the disease. . . . that the same was not caused by his employment; . . . . and there is no connection between it and the occupation which Claimant pursued for his employer. . . . that the Claimant has failed to show that his illness was caused by any accident arising out of or in the course of his employment with the Morrison-Knudsen Company."

The first question presented is whether or not there was sufficient competent evidence to support the board's findings. (In re Larson, 48 Idaho 136 279 P. 1087.) Certain facts are established, namely: In 1928, when claimant started work for Morrison-Knudsen Company, he had an arrested case of tuberculosis but was a strong and healthy man at and prior to such time. In October, 1931, he had "active tuberculosis" in an advanced and incurable stage. The dust in which claimant worked and which he breathed for three or four months during each of the years 1928, 1929, 1930 and in February, 1931, contained 80 to 85 per cent silica. The question is therefore squarely presented: Did the inhalation of silica dust precipitate or lighten up claimant's tuberculosis and, if so, was it an accident? Dr. Stallings, a tuberculosis specialist, testified, among other things, that he examined claimant in November, 1931, and had had him under observation for some time and found that he had an advanced pulmonary tuberculosis and was hopelessly ill. Further, he was asked the following hypothetical question:

"Q. Now assume, doctor, that Lee Otis Beaver is a...