Foote v. Hecla Mining Co.

• Decision Date: 10 December 1940
• Docket Number: 6856
• Citation: 108 P.2d 1030,62 Idaho 79
• Parties: ELIZA FOOTE, Widow, and ELIZA FOOTE, as Parent and Guardian of EUGENE BERNARD FOOTE and ELVIRA BLANCHE FOOTE, Minors, Appellant, v. HECLA MINING COMPANY, Respondent
• Court: Idaho Supreme Court

108 P.2d 1030

62 Idaho 79

ELIZA FOOTE, Widow, and ELIZA FOOTE, as Parent and Guardian of EUGENE BERNARD FOOTE and ELVIRA BLANCHE FOOTE, Minors, Appellant, v. HECLA MINING COMPANY, Respondent

No. 6856

Supreme Court of Idaho

December 10, 1940

WORKMEN'S COMPENSATION-OCCUPATIONAL DISEASE-SILICOSIS-ACCIDENTAL INCEPTION.

In proceeding to recover compensation for employee's death as alleged result of silicosis contracted while employed as miner, where there was no showing that employer furnished and employee used, dry drills prohibited by statute or that there was sudden "blowing up" due to lethal, latent or dormant tuberculosis or otherwise, Industrial Accident Board was justified in finding that death was caused by occupational disease, and hence not compensable under Workmen's Compensation Act. (I. C. A., secs. 43-1001, 43-1810; Sess. Laws, 1939, chap. 161.)

APPEAL from the Industrial Accident Board.

Appellant sought compensation for herself and on behalf of her minor children for the death of her husband, alleged to have been caused by silicosis contracted by deceased while in the employ of respondent. The board denied compensation and she appeals. Affirmed.

Order affirmed.

J. Ward Arney and Clay V. Spear, for Appellant.

"Accident," under the act, is an unexpected, untoward happening, neither designed or intended, even though it proceeds from the operation of known and usual causes. Nothing more is required than that the harm sustained shall be unexpected, even though the causes be known. (Sullivan Mining Co. v Aschenbach, 33 F.2d 1; McNeil v. Panhandle Lbr Co., 34 Idaho 733, 203 P. 1086; Aldrich v Dole, 43 Idaho 30, 249 P. 87; In re Larson, 48 Idaho 136, 279 P. 1087.)

Silicosis is progressive, sharp silica cutting the lung tissue, but, mainly, the chemical reaction forming an acid condition which continues to eat into and scarify the lungs; the chemical, and not necessarily the abrasive, changes being destructive. (Report National Silicosis Conference, Part 1; Bulletin 21, pp. 11 and 12, Department of Labor.)

Silicosis is progressive, even when removed from further exposure.

Chas. E. Horning, for Respondent.

A disease contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incidental to a particular employment, and which is neither more nor less than a disease which is the usual incident or result of the particular employment in which the workman is engaged is an occupational disease and is not within the contemplation of the Workmen's Compensation Law and is not compensable under the provisions of that law. (Sec. 43-1810, I. C. A.; Ramsay v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856; Sullivan Min. Co. v. Aschenbach, 33 F.2d 1; Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000.)

GIVENS, J. Ailshie, C. J., and Holden and Morgan, JJ., concur. Budge, J., did not sit at the hearing or participate in the opinion.

OPINION

GIVENS, J.

--E. B. Foote, miner, was employed as such in the Hercules Mine in Shoshone County from about 1923 to 1925 and in the Hecla Mine from then to April 30, 1937, when because of advanced silicosis from which he was then suffering he was unable to continue work as a miner, he ceased such employment and until October, 1939, swamped and cut logs. From the latter date, when he was unable to perform such arduous labor, he went on W. P. A. until November, 1939, when he was completely disabled by silicosis and confined thereby to his bed until his death therefrom January 12, 1940.

The evidence clearly shows that when Mr. Foote ceased working for the Hecla he was suffering from silicosis grade 2 plus as diagnosed by Dr. Smith, one of the doctors employed by respondent, and was then advised to take hospitalization therefor at Edgecliff Sanitarium, which treatment Mr. Foote declined.

Application was made by his widow, Eliza Foote, for herself and as guardian of their minor children, for compensation which was denied by the board on this finding:

"That the said E. B. Foote died on January 12, 1940 as a result of silicosis acquired by him while he was in the employ of the said Hecla Mining Company, as aforesaid; that the silicosis as a result of which the said E. B. Foote died, was an occupational disease and was not the result of any personal injury by accident, and was not the result of, and was not caused by, any negligence or lack of care by or upon the part of said Hecla Mining Company, but that the same was the...