Benson v. Jarvis, 7004

• Decision Date: 11 July 1942
• Docket Number: 7004
• Citation: 127 P.2d 784,64 Idaho 107
• Parties: BERT BENSON, Appellant, v. HAL R. JARVIS, Respondent
• Court: Idaho Supreme Court

127 P.2d 784

64 Idaho 107

BERT BENSON, Appellant, v. HAL R. JARVIS, Respondent

No. 7004

Supreme Court of Idaho

July 11, 1942

WORKMEN'S COMPENSATION-CLAIM FOR COMPENSATION-BURDEN OF PROOF-FINDINGS OF BOARD WHEN NOT DISTURBED-REVIEW-QUESTIONS OF LAW-AGGRAVATION OF PRE-EXISTING DISEASE-EVIDENCE.

1. A compensation claimant has the burden of proving his case by a preponderance of the evidence. (I.C.A., sec. 43-901, et seq.)

2. The credit and weight to be given the testimony in a compensation case is for the Industrial Accident Board. (I.C.A., sec 43-901, et seq.)

3. The Supreme Court's jurisdiction on appeal in a compensation case is limited to questions of law. (I.C.A., sec. 43-901, et seq.)

4. If examination by Supreme Court of record in compensation proceeding discloses that findings of the Industrial Accident Board denying compensation are supported by substantial, competent evidence, findings will not be disturbed but if they are not so supported findings are not conclusive, and will be set aside. (I.C.A., secs. 43-1408, 43-1409; sec. 43-1413 as amended by Sess. Laws, 1937, c. 175; Const., art. 5, sec. 9, as amended in 1937.)

5. Whether findings of the Industrial Accident Board in compensation proceedings are supported by substantial competent evidence is a "question of law" to be determined by the Supreme Court on appeal. (I.C.A., sec 43-901, et seq.)

6. Evidence sustained Industrial Accident Board's finding that the work that compensation claimant did for his employer did not cause silicosis from which he was suffering, and did not cause, light up, or aggravate tuberculosis. (I.C.A., sec 43-901, et seq.)

7. Evidence sustained Industrial Accident Board's finding that mining done by compensation claimant for employer did not aggravate or light up claimant's silicotic condition from inhalation of silica laden dust in mine. (I.C.A., sec. 43-901, et seq.)

APPEAL from the Industrial Accident Board.

Board's order denying compensation, affirmed.

Order affirmed. Costs to respondent.

Elam & Burke and Clarence L. Hillman for appellant.

Where a weakened, abnormal or diseased condition of a workman is aggravated and accelerated by accidental injury arising out of and in the course of employment, compensation must be paid for his resulting incapacity; nor will a showing of disease, abnormality or previous weakness of the injured part deprive a claimant of the right to recover compensation where the injury aggravates and accelerates the previous weakness or disease. (In re Larson, 48 Idaho 136; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; Hanson v. Independent School Dist., 57 Idaho 297; In re Soran, 57 Idaho 483; Evans v. Cavanagh, 58 Idaho 324; Nistad v. Winton Lumber Co., 59 Idaho 533.)

Where, as in this case, the rulings of law and the orders denying and dismissing the application made by the board are not supported either by its findings or by any substantial evidence, the board has committed errors of law; hence, such rulings of law and orders will be reversed and set aside by the Supreme Court. (U. S. Const., amends. IV and XIV, sec. 1; Const., art. I., sec. 13; Const., art. V, sec. 9, as amended by ratification at the General Election November 3, 1936; I.C.A., secs. 43-1408, 43-1409, 43-1410, as amended, 1937 Session Laws, c. 173, p. 288; In re Black, 58 Idaho 803, 80 P.2d 24.)

Findings of the Industrial Accident Board which are not supported by competent, substantial evidence are not binding or conclusive upon the Supreme Court of this state, and an order based thereon denying an award will be reversed by the court. (Pierstorff v. Grays' Auto Shop, et al., 58 Idaho 438, 74 P.2d 171; In re Black, 58 Idaho 803; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000.)

Claude V. Marcus for respondent.

In compensation case, plaintiff has burden of proving his case by preponderance of the evidence. (Leach v. Grangeville Highway Dist., 55 Idaho 307; Cunningham v. Armour & Co., (Neb.) 276 N.W. 393; Wilhelm v. Narregang-Hart Co., (S.D.) 279 N.W. 549.)

The credit and weight to be given the testimony in a compensation proceeding is for the Industrial Accident Board. (In re MacKenzie, 54 Idaho 481, 33 P.2d 113; Bussy v. Industrial Accident Commission, (Cal.) 79 P.2d 169.)

Negative testimony shall not be disregarded as against positive testimony, the rule being only that the testimony of one who testifies to the positive shall have greater weight than the one who testifies to the negative but where witnesses personally appeared and testified before the board and evidence was of such nature as might lead different minds to different conclusions the findings of Industrial Accident Board should not be disturbed. (Fackenthall v. Eggers Pole & Supply Co., et al., 62 Idaho 46, 108 P.2d 300.)

Industrial Accident Board's findings on evidence are conclusive on appeal. (C. 175, 1937 Idaho Session Laws, as amended by c. 70, 1939 Idaho Session Laws; Strouse v. Hercules Mining Co., 51 Idaho 7, 1 P.2d 203; Reader v. Milwaukee Lumber Co., 47 Idaho 380, 275 P. 1114.)

BUDGE, J. Givens, C. J., and Morgan, Holden and Ailshie, J. J., concur.

OPINION

BUDGE, J.

Appellant filed a claim with the Industrial Accident Board, and thereafter filed his application for hearing. In his claim, he alleges inter alia that he sustained a personal injury by accident by contracting silicosis while he was working for respondent at the Hayfork Mine operated by respondent and located near Idaho City, Boise County, Idaho; that by reason of so contracting silicosis he became totally and permanently disabled from performing work and labor; that such personal injury was caused by respondent's negligent operation of the mine. The claim was resisted, and upon a hearing regularly had before the board, compensation was denied and appellant's application dismissed, and an order entered to that effect, from which order this appeal is prosecuted.

Among other findings of fact, the board found:

"That the said claimant is 62 years of age, and for the past 35 years has been engaged almost continuously in mining * * * that while so engaged in said occupation as a miner, he has been exposed to inhalation of silica dust to such a degree that he now has, and all during the time he was in the employ of said defendant had, silicosis grade 2; that at sometime in the past the claimant also suffered with tuberculosis, the healed lesions of which are visible in an x-ray photograph of his lungs; that as a result of the said silicosis and of the condition of his lungs resulting therefrom and from the tuberculosis he previously had, he now has a disability for work equivalent to and comparable with the loss of one hand at the wrist. (Finding No. 3.)

"* * * the claimant, Bert Benson, made a claim for compensation under the Workmen's Compensation Law on account of a personal injury by accident occurring between July 18, 1941, and October 5, 1941, while working in 'mine, stopes and raises where blasting carried on creating extreme dust conditions * * *, powder smoke and gas resulting in poor ventilation, also timber gas' while working in said Hayfork mine and alleging the same to have caused injury to his 'lungs, lighting up latent tuberculosis, and causing, aggravating, and accelerating silicosis', and claiming to be 'totally and permanently disabled since October 4, 1941' * * *. (Finding No. 4.)

"That the Hayfork Mine operated by the defendant, Hal R. Jarvis, and in which the claimant worked as above stated, consists of four tunnels, two of which run entirely through the mountain in which the mine is situated, and second and fourth being connected by a raise from the fourth tunnel approximately 40 or 50 feet from the opening of the second tunnel, and the third tunnel running from the portal into the mountain beyond said raise and being connected with said raise running from the fourth to the second; that out of the raise running between the fourth and second tunnel and about 40 feet below the third tunnel there is a drift approximately 20 feet long, which now is also connected by a raise from it with the third tunnel; that the draft of air in the second and fourth tunnel is so strong, and during the time the claimant worked in said mine was so strong, that when a person stands, or stood, in one of them 'it almost blew your hat off'. (Finding No. 5.)

"That while he worked in said Hayfork Mine as above stated, the claimant drilled with drill steel and hand hammer and at no time used any machine drills; that when drifting he also moved muck from the place he had blasted to where it was loaded on wheelbarrows to be taken out of the mine; that at all places where he drilled and mucked, the ground was damp, and that due to the draft through the second and fourth tunnels and the ventilation resulting therefrom in all other parts of the mine, the air in which claimant worked circulated to such as extent that there was sufficient fresh air in which to work without injury; that in the evenings when claimant would come off his working shift, his hands, face, and clothing would be grimy as a result of his work. (Finding No. 6.)

"That the said defendant did not negligently or unlawfully operate the said Hayfork Mine during the time the claimant was employed therein, and that at no time was there not sufficient or adequate ventilation in said mine for carrying off silica laden dust, and dust laden with powder smoke and gas and timber gas; but that at all times the claimant worked therein the natural ventilation was adequate to provide sufficient and adequate ventilation in said mine; that the defendant did not furnish claimant with a mask for his protection; that under the conditions appertaining...