Brown v. St. Joseph Lead Company

• Decision Date: 21 December 1938
• Docket Number: 6557
• Citation: 60 Idaho 49,87 P.2d 1000
• Parties: HOMER BROWN, Appellant, v. ST. JOSEPH LEAD COMPANY, Respondent
• Court: Idaho Supreme Court

87 P.2d 1000

60 Idaho 49

HOMER BROWN, Appellant, v. ST. JOSEPH LEAD COMPANY, Respondent

No. 6557

Supreme Court of Idaho

December 21, 1938

WORKMEN'S COMPENSATION-NOTICE OF INJURY AND CLAIM FOR COMPENSATION-TIME FOR GIVING-PERSONAL INJURY ARISING OUT OF AND IN COURSE OF EMPLOYMENT-ACCIDENTAL INJURY-SILICOSIS-OCCUPATIONAL DISEASE.

1. An employee's failure for nearly one year after leaving his employment to give employer notice that employee claimed that he had been injured by contracting silicosis while employed at employer's lode mine, was not prejudicial to employer as against contention that employer maintained complete hospital facilities and was not given an opportunity to examine employee and render him medical aid, where employer knew of dusty conditions in mine and the possible consequences thereof to employee, and medical treatment and hospitalization would not have aided employee after he contracted silicosis.

2. In determining what injuries are accidental and what are occupational diseases, the Supreme Court will not place a narrow or hypercritical construction on provision in Workmen's Compensation Act providing that the words "personal injury by accident arising out of and in the course of such employment" shall not include a disease not resulting from the injury. (I. C. A., sec. 43-1810.)

3. An employee in lode mine who contracted silicosis did not suffer from an "occupational disease" so as to be barred from compensation, where silicosis was preventable by not permitting silica dust to enter the employee's lungs, and the use of wet drills would have prevented the spread and dissemination of the silica dust, and employer's failure to use wet drills was in violation of a criminal statute. (I C. A., secs. 43-1810, 46-501.)

4. An "occupational disease" which is barred from compensation is a disease which inheres in a particular employment and cannot be prevented by reasonable means. (I C. A., sec. 43-1810.)

5. For an injury to be "accidental" within the Workmen's Compensation Law, the accident need not occur at one instant, but there may be repetitious causes all relatively slight, which culminate and result in as serious and fatal an injury as though the disabling or lethal blow or incident occurred at one time. (I. C. A., sec. 43-1810.)

6. While compensation under the Workmen's Compensation Law does not depend on the negligence of the employer, the employer's negligence not only does not preclude the compensation, but compels compensation. (I. C. A., sec 43-1810.)

ON REHEARING.

7. The accident sustained by lode mine employee who contracted silicosis was completed when the disease became so bad that employee was forced to cease working, and the one-year period within which claim for compensation must be filed under the Workmen's Compensation Act began to run from such date. (I. C. A., sec. 43-1202.)

Direct appeal from order of the Industrial Accident Board denying compensation. Reversed and remanded.

Reversed and remanded with instructions. Costs to appellant.

Elam & Burke, for Appellant.

Silicosis caused by employer's wilful failure to comply with section 46-501, Idaho Codes Annotated, is a personal injury by accident and is not an occupational disease. (Sec. 46-501, I. C. A.; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; McNeely v. Carolina Asbestos Co., (1934) 206 N.C. 568, 174 S.E. 509; Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 44 A. L. R. 363; Seattle Can Co. v. Department of Labor & Industries, (1928) 147 Wash. 303, 265 P. 739; Johnson v. Hughes, (1935) 207 N.C. 544, 177 S.E. 632; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530, 533.)

An occupational disease is restricted to diseases resulting from ordinary and generally known and expected risks and incidents to a particular employment--it does not apply to a disease or injury resulting from tort in failing to furnish a safe place to work, adopt and provide adequate safety precautions. (Beaver v. Morrison-Knudsen Co., supra; McNeely v. Carolina Asbestos Co. , supra; Victory Sparkler & Specialty Co. v. Francks, supra; Seattle Can Co. v. Department of Labor & Industries, supra.)

Inhaled rock dust striking against and affecting texture of lung is an accident, particularly where the cause thereof could have been eliminated. (Beaver v. Morrison-Knudsen Co., supra; Bybee v. Idaho Equity Exchange, 57 Idaho 396, 65 P.2d 730; Ramsay v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856; Sullivan Min. Co. v. Aschenbach, (C. C. A.) 33 F.2d 1; Reinoehl v. Hamacher Pole etc. Co., 51 Idaho 359, 6 P.2d 860.)

Requirement with reference to notice to employer is met by showing that employer through its mining superintendent in charge of mine knew conditions under which employee worked, that latter was failing in health, and that the employer had the same knowledge of the accident as employee; further that injury was such that any medical facilities furnished would have been of no avail in treatment. (Sec. 43-1205, I. C. A.; Smith v. McHan Hardware Co., 56 Idaho 43, 48 P.2d 1102; Beaver v. Morrison-Knudsen, Co., supra; Bates & Rogers Const. Co. v. Allen, 183 Ky. 815, 210 S.W. 467.)

Accident in this case was a continuing accident, which continued to the date appellant ceased employment; a claim filed within one year of that date meets the requirements of I. C. A.; sec. 12-1202. (Beaver v. Morrison-Knudsen Co., supra; Aldrich v. Dole, 43 Idaho 30, 249 P. 87; Sullivan Min. Co. v. Aschenbach, 33 F.2d 1; Wozniak v. Stoner Meat Co., 57 Idaho 439, 65 P.2d 768; Bybee v. Idaho Equity Exchange, 57 Idaho 396, 65 P.2d 730; Reinoehl v. Hamacher Pole etc. Co., supra; Hanson v. Independent School Dist., 50 Idaho 81, 294 P. 513; In re Larson, 48 Idaho 136, 279 P. 1087, 1089.)

E. B. Smith, for Respondent.

A workman, to be entitled to compensation, must sustain personal injury "by accident arising out of and in the course of his employment." (I. C. A., sec. 43-1001.)

The words "personal injury by accident arising out of and in the course of such employment" shall not include a disease except as it shall result from the injury. (I. C. A., sec. 43-1810.)

The burden of showing lack of prejudice is on the employee where (1) notice required by I. C. A., sec. 1202, is not given within the sixty-day period or (2) where there is a want of notice or delay in giving notice, unless it be shown that the employer had knowledge of the accident. (I. C. A., sec. 43-1205; Frost v. Idaho Gold Dredging Co., 54 Idaho 312, 31 P.2d 270.)

Silicosis suffered by claimant herein was and is an occupational disease for which there is no provision for the payment of compensation benefits in the compensation law of Idaho. (Crowley v. Idaho Industrial Training School, 53 Idaho 606, 26 P.2d 180; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, at 283, 41 P.2d 605; Associated Indemnity Corp. v. Indemnity Acc. Com., 124 Cal.App. 378, 12 P.2d 1075; Mauchline v. State Ins. Fund, 279 Pa. 524, 124 A. 168; Moore v. Service Motor Truck Co., 80 Ind.App. 668, 142 N.E. 19.)

GIVENS, J. Holden, C. J., and Ailshie and Budge, JJ., concur. Morgan, J., did not sit with the court at the hearing nor participate in the opinion.

OPINION

GIVENS, J.

Appellant was employed by respondent at its lode mine at Atlanta from August, 1931, to April, 1936. About two months later he worked in Mountain City, Nevada, as a carpenter's helper and October, 1936, went to a hospital in Boise suffering from silicosis in the third stage and is now living in Mountain Home.

April 21, 1937, within one year after leaving respondent's employ, appellant, by his attorney, served notice of injury and claim for compensation on respondent's statutory agent, it having ceased its operations in Idaho, claiming he was injured by contracting silicosis while in its employ in the mine at Atlanta. Respondent denied liability contending appellant was suffering from an occupational disease and it had been prejudiced by not being notified sooner of the claimed injury or accident because it maintained complete hospital facilities at Atlanta and had had no opportunity to examine into his condition and render medical aid to appellant, and that appellant had suffered no compensable accidental injury, thus presenting two questions: Did appellant have a noncompensable occupational disease, and was respondent prejudiced by the delayed notice?

The board found as to appellant's employment and the conditions under which he worked, in line with the evidence which showed without material dispute that the rock in the mine which had to be drilled and excavated had a high silica content, was hard, and that about 29 drills were used, of which only nine were wet drills and that these wet drills were used only intermittently when the State Mine Inspector made his visits and when he left the mine the use of the wet drills was discontinued; that the wet drills, when properly used, did away with the extremely dusty condition which otherwise prevailed; that on certain levels the water supply was inadequate and it was somewhat difficult and expensive to secure sufficient water there (for the wet drills) but the mine superintendent, Mr. Thoreson, and workmen other than appellant testified sufficient water supply and pressure could have been made available throughout the mine and that the use of the wet drills prevented the spread and dissemination of the silica dust which, because wet drills were not used and because there was inadequate ventilation, hung in dense clouds in the stopes and levels, obscuring vision and settling on the faces and clothing of the workmen. The board found the failure to use wet drills was in direct violation of sec. 46-501, I. C. A., but denied compensation because appellant had an occupational...