Bishop v. Morrison-Knudsen Co.

• Decision Date: 24 May 1943
• Docket Number: 7091
• Parties: VIRGIE BISHOP, surviving widow, on her own behalf and on behalf of her minor son EDDIE DeWAYNE BISHOP, Respondent, v. MORRISON-KNUDSEN COMPANY and J. W. BRENNAN, Employers, and UNITED PACIFIC INSURANCE COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

137 P.2d 963

64 Idaho 806

VIRGIE BISHOP, surviving widow, on her own behalf and on behalf of her minor son EDDIE DeWAYNE BISHOP, Respondent, v. MORRISON-KNUDSEN COMPANY and J. W. BRENNAN, Employers, and UNITED PACIFIC INSURANCE COMPANY, Surety, Appellants

No. 7091

Supreme Court of Idaho

May 24, 1943

WORKMEN'S COMPENSATION-DEATH-AUGMENTATION OF PRE-EXISTING PHYSICAL CONDITION.

1. Although hard work is not an "accident" nor an "injury", within Workmen's Compensation Law, it may augment or accelerate injurious results of an accident. (I.C.A., sec. 43-901 et seq.)

2. Whether employee's death was result of injury sustained by accident arising out of and in course of his employment or whether cause of employee's death was due to accident and injury in course of employment augmenting a pre-existing physical condition with which employee was afflicted, so as to entitle employee's widow to compensation, or whether cause of employee's death was due to disease, so that widow was not entitled to compensation, was question for Industrial Accident Board. (I.C.A., sec. 43-901 et seq.)

3. Proceedings under Workmen's Compensation Law are to be liberally construed. (I.C.A., sec. 43-901 et seq.)

4. The rule that proceedings under Workmen's Compensation Law are to be liberally construed would apply to findings of fact and sufficiency thereof by Industrial Accident Board. (I.C.A., sec. 43-901 et seq.)

5. Finding of Industrial Accident Board that employee's death was result of accidental fall in course of his employment and that employee's work after the accident simply augmented the injury was supported by competent evidence, and was sufficient to support an award of compensation for employee's death. (I.C.A., sec. 43-901 et seq.)

6. Where parties stipulated that hearing on compensation claim could be held by two members of Industrial Accident Board and that in case the two members could not agree upon decision the third member could read transcript and take part in decision to same effect as though he were present at the hearing, Board did not exceed its jurisdiction in entering an award signed by one of the members who conducted the hearing together with the third member who did not sit at the hearing, in view of the stipulation. (I.C.A., sec. 43-901 et seq.)

7. The section of Workmen's Compensation Law authorizing deductions for pre-existing injuries and infirmities in computing compensation if degree or duration of disability resulting from accident is increased does not apply to an award for death, since word "disability" as used in section does not include "death." (I.C.A., sec 43-1123 as amended by Sess. Laws 1941, chap. 155.)

8. Where employee's death resulted from an injury sustained by accident and pre-existing disease contributing concurrently and effectively to employee's death, no apportionment could be made in computing award under section of Workmen's Compensation Law authorizing deductions for pre-existing injuries and infirmities if degree or duration of disability resulting from accident is increased. (I.C.A sec. 43-1123 as amended by Sess. Laws 1941, chap. 155.)

9. Where section of Workmen's Compensation Law authorizing deductions for pre-existing injuries and infirmities in computing compensation if degree of duration of disability resulting from accident is increased was copied from Alabama statute, and Alabama courts had construed the statute prior to its enactment by Idaho legislature, it would be assumed that the legislature, in enacting the section, took notice of the Alabama statute and decisions based thereon. (I.C.A sec. 43-1123 as amended by Sess. Laws 1941, chap. 155.)

10. The framers of constitution or legislature, adopting constitutional or statutory provision from another state after its construction by courts of such state, would be assumed to have intended to adopt such construction.

Appeal from the Industrial Accident Board of the State of Idaho.

Proceedings under Workmen's Compensation Law. Appeal from an order of the Industrial Accident Board awarding claimant compensation. Affirmed.

Award sustained. Costs to respondent.

J. F. Martin and E. B. Smith for appellants.

Unless the Industrial Accident Board or majority thereof hears and sees the witnesses testify, its finding is not conclusive on the Supreme Court. (Phipps v. Boise Street Car Co., 61 Idaho 740, 107 P.2d 148.)

"Personal injury by accident arising out of and in the course of employment * * shall not include a disease except as it shall result from the injury." Aggravation of symptomology of a disease is insufficient to sustain an award of compensation. (I. C. A., sec. 43-1810; Dunnigan v. Shields, 52 Idaho 195, 12 P.2d 773; Scarborough v. Beardmore, 52 Idaho 180, 12 P.2d 771; Twitchell v. Beardmore, 50 Idaho 147, 295 P. 428.)

William H. Witty and Walter H. Anderson for respondent.

The finding in this case would have been amply sustained by the evidence had no expert evidence been offered. (Moreno v. New Guadalupe Mining Co., 170 P. 1088, 35 Cal.App. 744; Beaber v. Kurn, 91 S.W.2d 70 at p. 77 right hand column; Curry v. J. M. Willson & Sons, 152 A. 746.)

The evidence in these cases does not require that the cause of the injury or death be proven to the exclusion of all other possible causes. (Suren v. Sunshine Mining Co., 58 Idaho 101, 70 P.2d 399; Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910; Riley v. Boise City, 54 Idaho 335, 31 P.2d 968; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; Leach v. Grangeville Highway District, 55 Idaho 307, 41 P.2d 618; Wozniak v. Stoner Meat Co., 57 Idaho 439, 65 P.2d 768; Golay v. Stoddard, 60 Idaho 168, 89 P.2d 1002.)

Before the Supreme Court would be authorized to set aside the award in this case it would have to say that there is no substantial evidence to support the board's finding. ( Golay v. Stoddard, supra; In Re Black, 58 Idaho 803, 80 P.2d 24; Roe v. Boise Grocery Co., supra.)

BUDGE, J. Ailshie, Givens and Dunlap, JJ., concur, HOLDEN, C.J. (Concurring specially.)

OPINION

BUDGE, J.

This is an Industrial Accident case on appeal from an award in favor of claimant, respondent herein, surviving widow of Curtis Bishop, on her own behalf, and on behalf of Eddie DeWayne Bishop, dependent child of Curtis Bishop, now deceased, and respondent.

The pertinent facts found by the board and disclosed by the record, briefly stated, are as follows:

During his lifetime, Curtis Bishop was employed as a laborer, his principal occupation being that of a hard-rock miner. Between July 14, 1942, and July 27, 1942, inclusive, Curtis Bishop, hereinafter referred to as "employee" (approximately 51 years of age, and apparently in good health), while in the employ of appellants, Morrison-Knudsen Company and J. W. Brennan, as a common laborer, on July 18, 1942, and while engaged with other co-workers in unloading masonite from a railroad box-car at the U.S. Army Air Base near the City of Pocatello, and while standing on said masonite, either fell, or was knocked out of the car, to the ground between the box-car and the warehouse, a distance of from 4 to 6 feet; in falling he hit against a sliding door on the warehouse, lighting upon his rump, with his shoulders and back against the warehouse side. With slight assistance from his co-workers, employee rose to his feet, said he was not injured, and refused to go to a first aid station. After sitting around for a short time, employee resumed the work he had theretofore been doing, continuing work until five o'clock. Thereafter employee, upon reaching home, complained to his wife of pain in his back and left shoulder blade, and had a large red lump or swelling on his back. He ate sparingly of the evening meal and went to bed. Claimant applied hot towels and rubbing alcohol to her husband's back and shoulders. He complained of pain in his back and shoulders at different times during the night. The next morning claimant again rubbed her husband's shoulders and back with alcohol, and did so upon numerous occasions thereafter. Employee returned to work on each and every day up to and including July 27, 1942. He continued to work eight hours a day, and upon some days worked over time. However, covering practically this entire time and upon different occasions employee complained to his fellow-workmen and to claimant that his shoulder was stiff and that he suffered pain in his back. The record discloses that he (Bishop) was unable to sleep; that it was necessary to keep him propped up in order that he might breathe without experiencing great difficulty, and his pain might be lessened, thereby obtaining some sleep. On July 27, 1942, he complained to one of his fellow-workmen that he was sick and ceased working. On July 28, 1942, he visited Dr. West, a chiropractic physician, who made a general examination of employee, and who testified that the examination disclosed nothing abnormal except that the muscles through the region of employee's back "were extremely tender and tense;" that his "heart was extremely slow" and "seemed to be laboring," and at the time of the examination of the employee the swelling and discoloration on his back and shoulder had disappeared. After the examination employee went home. He lay down during the day and that night he had trouble with his breathing and had to keep in a certain position to breathe; he suffered pain constantly in his back and shoulder, and on the morning of July 29, 1942, employee died.

On July 31, 1942, an autopsy on the body of the deceased was performed by two physicians. The board found "that at said autopsy no evidence of injury of any kind was disclosed but a marked pleurisy in the left lung and over the chest and at the base of the left lung and diaphragm was found, also that the...