Blair v. State Indus. Acc. Commission

• Decision Date: 20 May 1930
• Citation: 133 Or. 450,288 P. 204
• Parties: BLAIR v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

288 P. 204

133 Or. 450

BLAIR v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

May 20, 1930

Department 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Proceedings under the Workmen's Compensation Act by Alberta Blair for compensation for death of her husband, Horace Newton Blair opposed by O. N. Pierce & Company, employer. From a judgment awarding compensation, the State Industrial Accident Commission of the State of Oregon appeals.

Reversed.

Walter L. Tooze, Jr., of Portland, for appellant.

W. C Winslow and W. W. McKinney, both of Salem, for respondent.

RAND, J.

This is an appeal by the State Industrial Accident Commission from the judgment of the circuit court for Marion county, awarding plaintiff, under the Workmen's Compensation Act compensation for the death of her husband, Horace Newton Blair, who, while employed by O. N. Pierce & Company as a workman and engaged in the work of constructing a bridge across the Rogue River at Gold Hill, contracted typhoid fever from which he died. After his death plaintiff, as the widow and beneficiary of said decedent, applied for compensation under section 6626, Or. L., but her application was denied upon the ground, as stated in the order denying the same that decedent's death "did not result from an accidental injury arising out of and in the course of his employment." Upon the trial in the circuit court, the jury found that decedent died of typhoid fever which he contracted from drinking water from the Rogue river while at work upon the bridge, and that his contracting the disease while so employed was an accidental injury which arose out of and in the course of his employment. The commission, upon this appeal, while admitting that decedent died of typhoid fever, contends that there was no evidence to support the finding that the contracting of the disease was an accidental injury arising out of and in the course of his employment within the meaning of the statute.

It appears from the testimony that decedent was employed upon the bridge for four or five months prior to April 19th, when he became ill of typhoid fever from which he died on June 19th following; that, while so employed, he and others working on the bridge drank the untreated water of the Rogue river; that this water contained sewage and bacillus coli in great numbers and was unfit and unsuitable for human consumption; that the city of Gold Hill pumped the water from the Rogue river but treated it, thereby rendering it safe and suitable for human consumption; that no person using the city water became ill of typhoid fever; that decedent and two other employees at work upon the bridge who drank the untreated water while at work contracted typhoid fever; and that decedent died and the other two workmen recovered. It also appeared from the testimony that at a filling station in Gold Hill, a short distance from the bridge, arrangements had been made for the employees, while at work upon the bridge, to obtain city water for drinking purposes, and that buckets had been provided for carrying the water to the bridge for drinking purposes; that close to the bridge the railroad company operated a pump to pump water from the river into a tank for engine use; that between the pump and the tank a connection was made by which the water pumped from the river was conveyed through a hose to the bridge for use in mixing cement, and for other construction purposes; that decedent and some of the other workmen drank the water from this hose, or went down to the river and drank the water directly from the river.

There is practically no dispute as to the facts in this case, and there was sufficient evidence to warrant the jury in finding that decedent contracted typhoid fever from drinking the untreated water of the Rogue river while he was employed in the construction of the bridge. But there is no evidence to show that the water was furnished to decedent for drinking purposes or that he was obliged to drink this water while engaged in work upon the bridge. Section 6626, Or. L., under which the right to compensation is claimed, reads as follows: "If any workman while he is subject to this act and in the service of an employer who is thus bound to contribute to the industrial accident fund shall sustain a personal injury by accident arising out of and in the course of his employment caused by violent or external means, he or his beneficiaries, or dependents, if the injury result in death, shall receive compensation according to the following schedule. * * *"

To entitle an injured workman to compensation under this statute, the workman must sustain a personal injury by accident arising out of and in the course of his employment caused by violent or external means. It is not sufficient that the workman shall have sustained a personal injury alone. It must have been an accidental injury. The element of accident must be added to the injury and the physical injury or harm resulting from an accident must have arisen out of and in the course of the employment. It is not sufficient that it should arise out of the employment or that it should arise in the course of the employment, for both must concur. The words used in the statute, "arising out of and in the course of his employment," are used conjunctively not disjunctively, and...