Feuling v. Farmers' Co-Operative Ditch Co.

• Decision Date: 06 April 1934
• Docket Number: 6069
• Citation: 54 Idaho 326,31 P.2d 683
• Court: Idaho Supreme Court
• Parties: FRANK J. FEULING, Respondent, v. FARMERS' CO-OPERATIVE DITCH COMPANY, a Corporation, Employer, and STATE INSURANCE FUND, Surety, Appellants

31 P.2d 683

54 Idaho 326

FRANK J. FEULING, Respondent, v. FARMERS' CO-OPERATIVE DITCH COMPANY, a Corporation, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 6069

Supreme Court of Idaho

April 6, 1934

WORKMEN'S COMPENSATION ACT-NOTICE OF INJURY-CLAIM FOR COMPENSATION - NOTICE-PARTIAL DISABILITY-EVIDENCE-FINDING OF INDUSTRIAL ACCIDENT BOARD, WHEN NOT DISTURBED-COMPENSATION, COMPUTATION.

1. Injury to common laborer employed by ditch company when he slipped while carrying rock to barge while assisting in repairing diversion dam across river "arose out of and in course of employment" (I. C. A., sec. 43-901 et seq.).

2. Notice of accident to common laborer, given to employer's superintendent, was notice to employer within compensation act (I. C. A., sec. 43-901 et seq. and secs. 43-1202, 43-1205).

3. Provisions of compensation act respecting notice of injury and claim for compensation and sufficiency of notice are construed together (I. C. A., secs. 43-1202, 43-1205).

4. Where employer has notice of accident, compensation act does not require that he have notice within time specified that injury actually resulted (I. C. A., secs. 43-1202, 43-1205).

5. Employer held to have had sufficient notice of accident within compensation statute where employer's superintendent witnessed accident and employee discussed injury with superintendent one month later (I. C. A., sec 43-1202).

6. Evidence in compensation proceeding held sufficient to support finding that by reason of injury employee was partially disabled for thirty weeks (I. C. A., sec. 43-901 et seq.).

7. Finding of compensation board on sufficient evidence will not be disturbed.

8. Without evidence showing average earnings of injured employee over preceding twelve months or showing of average wages of workman of same grade in same class of employment, board or courts cannot arbitrarily set figure for average weekly wage as basis for computing award (I. C. A., secs. 43-1112, 43-1118).

9. Strict rules of procedure are not required before Industrial Accident Board which is a fact-finding and administrative body (I. C. A., sec. 43-1404).

10. Where injured employee entitled to compensation has failed or overlooked submitting evidence to establish amount of compensation, Industrial Accident Board must call attention to such failure and see that available evidence is presented and then make necessary fact findings (I. C. A., sec 43-1404).

11. Where evidence was insufficient to establish average weekly wage of injured employee, record held not to justify award of compensation except for medical services and costs (I. C. A secs. 43-1112, 43-1118).

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Proceeding under Workmen's Compensation Act. Appeal from judgment of District Court reversing order of Industrial Accident Board, and awarding compensation. Reversed with instructions.

Judgment reversed, with directions. Costs awarded to appellants.

S. Ben Dunlap, for Appellants.

The determination of a question of fact is for the board and a finding supported by either positive evidence or logically inferred from the facts presented will not be disturbed. (Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6.)

In order to relieve the employee of the burden of giving written notice of the accident or injury the employer must have had not only notice of the accident but of the injuries resulting therefrom within sixty days of the happening. (Cooper v. Independent Trans. & Storage Co., 52 Idaho 747, 19 P.2d 1057.)

Stewart S. Maxey and John D. Ewing, for Respondent.

Want of notice or delay in giving notice as required by sections 43-1202 and 43-1203, I. C. A., is not a bar to claimant's cause of action where it is shown that the employer, his agent, or representative, had knowledge of the accident. (Sec. 43-1205, I. C. A.; Cooper v. Independent Trans. & Storage Co., 52 Idaho 747, 19 P.2d 1057; Crowley v. Idaho Ind. Training School, 53 Idaho 606, 26 P.2d 180.)

In cases where the evidence is not conflicting, and not in dispute, the application of the law to undisputed evidence raises a question of law and not of fact. (E. T. Chapin Co. v. Scott, 44 Idaho 566, 260 P. 172; Palmer v. J. A. Terteling & Sons, 52 Idaho 170, 16 P.2d 221; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227.)

WERNETTE, J. Givens and Morgan, JJ., concur. Budge, C. J., and Holden, J., concurring in part and dissenting in part.

OPINION

WERNETTE, J.

Claimant and respondent, Frank J. Feuling, was in the employ of defendant and appellant, Farmers' Co-operative Ditch Company, on April 29, 1932. He was employed by appellant two or three days prior to that date as a common laborer, with a salary of $ 2.40 per day, to assist in repairing a diversion dam across the Boise River. Part of the work consisted in carrying rocks from the bank of the river to a barge anchored in the stream. While so engaged in carrying a rock to the barge, respondent slipped and started to fall. To prevent falling he dropped the rock he was carrying and broke his fall by catching hold of the barge. When respondent had this accident, which was between 4 and 4:30 o'clock in the afternoon, he felt no injury or pain but continued with his work until 5 o'clock, which was the customary quitting time, and then went to his home. About 9 o'clock that evening respondent experienced pain in the nature of soreness in the small of his back. This pain and soreness continued and became somewhat more severe until May 28, 1932, when respondent consulted with and was examined by a chiropractor, who found respondent to have a minor sacroiliac slip or sprain with a subluxated fifth lumbar vertebra.

The work which respondent had been engaged in for appellant was completed on the same day he suffered the accident, April 29, 1932. From the time of the accident until the time of the hearing before the Industrial Accident Board, November 29, 1932, respondent performed no labor except for a few days in a mercantile store and sixteen days in July, 1932, in attendance at a national guard encampment, which attendance required no physical drill work. Aside from the work described, respondent testified that he was disabled for work from the time of the accident until the time of hearing.

No written report of the injury was made by respondent to appellants until July 1, 1932. It does appear, however, that on the evening of May 28, 1932, after having consulted with the chiropractor for the first time, the respondent did go and discuss his injury with Mr. John Turner, who was superintendent of the Farmers' Co-operative Ditch Company at the time respondent sustained the injury, and, who witnessed the accident.

On hearing before the Industrial Accident Board, that body refused to award compensation to respondent, finding, among other things, that notice of the accident "was not given to the employer as soon as practical after the happening thereof and that it has not been shown that the employer has not been prejudiced by such delay."

Thereafter an appeal was taken to the district court. Judgment was entered by the court reversing the Industrial Accident Board and awarding respondent compensation for partial disability for thirty weeks, for medical services and costs. This appeal is prosecuted from the judgment of the district court.

There is sufficient evidence to show that the injury suffered by respondent arose out of and in the course of his employment. The question is then presented, did appellant, employer, receive notice of the accident and within time, as contemplated by sections 43-1202 and 43-1205, I. C. A.? The provisions of those sections, which are material to a determination of that question, are:

43-1202. "NOTICE OF INJURY AND CLAIM FOR COMPENSATION.--No proceedings under this act for compensation for any injury shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable but not later than sixty days after the happening thereof, . . . . "

43-1205. "SUFFICIENCY OF NOTICE.--A notice given under the provisions of section 43-1202 shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to his injury thereby. Want of notice or delay in giving notice shall not be a bar to proceedings under this act if it be shown that the employer, his agent or representative, had knowledge of the accident, or that the employer has not been prejudiced by such delay or want of notice."

The Industrial Accident Board did not find that the employer had notice of the accident prior to July 1, 1932, when written notice was given. The district court found that the employer received oral notice of the accident on May 28, 1932, when respondent discussed his injury with appellant's superintendent. We believe there is sufficient evidence to sustain the finding of the district court, and that the notice to the superintendent was notice to the employer. (Crowley v. Idaho Industrial Training School, 53 Idaho 606, 26 P.2d 180.) But this conclusion does not dispose of the question. Three weeks elapsed between the time of the accident and the oral notice to the employer, and the appellants make the contention that notice was not given "as soon as practicable" resulting in prejudice to the employer, and the board so found. On the other hand respondent contends that appellants had notice of the accident within the meaning of section 43-1202, I. C. A., on April 29, 1932, for the reason that appellant's superintendent witnessed the happening of the accident.

Prior to 1927, C. S., 1919, sec. 6243, now sec....