Frandila v. Department of Labor and Industries

• Decision Date: 04 February 1926
• Docket Number: 19569.
• Citation: 137 Wash. 530,243 P. 5
• Parties: FRANDILA v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

243 P. 5

137 Wash. 530

FRANDILA v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 19569.

Supreme Court of Washington

February 4, 1926

Department 2.

Appeal from Superior Court, Grays Harbor County; Campbell, Judge.

Claim by Annie Frandila for compensation for the death of Gust Frandila, her husband, was refused by the Department of Labor and Industries. On appeal to the superior court, the action of the Department was reversed, and the Department appeals. Affirmed.

John H Dunbar and M. H. Wight, both of Olympia, for appellant.

G. F Vanderveer and S. B. Bassett, both of Seattle, for respondent.

MACKINTOSH J.

Gust Frandila was a coal miner, and in June, 1924, was 60 years of age. For 8 months prior to June he had been out of employment and what work he did during that period was limited to chopping fire wood for his home. On the 2d day of June he was employed to assist in digging a ditch for a sewer in one of the streets of Hoquiam. He went to work at 1 o'clock in the afternoon, and about 3 hours thereafter he was noticed by the foreman to stop chopping on a root at the bottom of the ditch, which was then some 4 1/2 feet deep, throw away his ax, lean against the ditchside, and collapse. Assistants went to him and he was picked up and brought out onto the sidewalk, where he died in about 15 minutes. The ditch was being dug through a clay soil, and the witnesses testified that it was hard digging. It was necessary to cut out roots of varying sizes, and the root upon which Frandila was working at the time of his collapse was from 6 to 8 inches in diameter. Witnesses also testified that the cutting of these roots was hard work. The testimony established that the workman was suffering from hardening of the arteries and that he died from either a rupture of a blood vessel or embolism. The respondent, the workman's widow, made claim for compensation to the appellant, the department of labor and industries, and the claim, having been disallowed an appeal, was taken to the superior court, which reversed the action of the department, and from that decision the appeal is taken here.

The department contends that the death of the workman was not occasioned by a fortuitous event, in that there was no unusual strain or exertion, but that it was occasioned by the hardening of the arteries, which is a slow, progressive disease, and when sufficiently advanced produces death under ordinary exertion. Section 7679, Rem. Comp. Stat., provides that every injured workman, or his family, is entitled to compensation where death results from an injury, and in section 7675 'injury' is defined as referring 'only to an injury resulting from some fortuitous event as distinguished from the contraction of disease.' The question, then, is whether the testimony in this case shows a fortuitous event.

It is plain from the evidence that the hardened arteries, coupled with overexercise in the course of employment, caused either the hemorrhage or embolism. The chopping of the root was a definite and particular occurrence which was the contributing, proximate cause of the death. The question of whether an injury has been the result of an accident or an accident arising out of the employment, which are narrower terms than fortuitous event, has been considered by many courts, and the result of these decisions seems to be that an accident exists when a man undertaking work is unable to withstand the exertion required to do it, whatever may be the degree of exertion used or the condition of the workman's health. The Supreme Court of Kansas, in Gilliland v. Ash Grove Lime, etc., Co., 104 Kan 771, 180 P. 793, reviews many of the English cases upon this subject, and announces this rule.

In Re Madden, 222 Mass. 487, 111 N.E. 379, L. R. A. 1916D 1000, Chief Justice Rugg of the Massachusetts Supreme Court used this language:

'When a pre-existing heart disease of the employé is accelerated to the point of disablement by the exertion and strain of the employment, not due to the character of the disease acting alone or progressing as it would in any rational work, there may be found to have been a personal injury.'

The Supreme Court of Maine, in Brown's Case, 123 Me. 424, 123 A. 421, where death resulted while the workman was shoveling snow from a roof, the exertion causing acute heart dilation, held that this was an accident; the court saying:

'The defendants contend that there is no evidence of accidental injury; that what occurred was the development of disease, and not the happening of an accident.

'The word 'accident,' frequently the subject of judicial interpretation, has been recently defined by this court with copious citation of authorities. Patrick v. Ham, 119 Me. 517, 111 A. 912, 13 A. L. R. 427. By all authorities, an occurrence to be accidental must be unusual, undesigned, unexpected, sudden. The word is commonly predicated of occurrences external to the body, e. g., wrecks, explosions, collisions, and other fortuitous mishaps in the world of things about us. Such external accidents may or may not cause bodily injuries. But an internal injury that is itself sudden, unusual, and unexpected is none the less accidental because its external cause is a part of the victim's ordinary work.

'If a laborer performing his usual task, in his wonted way, by reason of strain, breaks his wrist, nobody would question the accidental nature of the injury. If, instead of the wrist, it is an artery that breaks, the occurrence is just as clearly an accident.'

In Babich v. Oliver Iron Mining Co., 157 Minn. 122, 195 N.W. 784, 202 N.W. 704, the Supreme Court of Minnesota held that a sudden break in the physical structure of the body of the employé, caused by some strain or exertion in the employment of the master, was an accidental injury, even though there was no external, unforeseen event, such as slipping, falling, or being struck. See, also, State ex rel. Puhlmann v. District Court, 137 Minn. 30, 162 N.W. 678.

The Court of Appeals of Indiana, in Haskell & Barker Car Co. v. Brown, 67 Ind.App. 178, 117 N.E. 555, was considering the case of a workman who was killed while unloading steel sheets from a car. The workman was suffering from hardening of the arteries and the work which he was doing increased the strain upon the arteries by the increased blood pressure. The court held that his death was due to an accident; that that word is used in its popular sense and means any unlooked for mishap or untoward event not expected or designed. See, to the same effect, Indian Creek Coal & Mining Co. v. Calvert, 68 Ind.App. 474, 119 N.E. 519, 120 N.E. 709; General American Tank Car Corporation v. Weirick, 77 Ind.App. 242, 133 N.E. 391.

In Chicago & Alton R. Co. v. Industrial Commission, 310 Ill. 502, 142 N.E. 182, the Supreme Court of Illinois held that the death of an employé, from a pre-existing disease or condition which was aggravated or accelerated by work being performed by him, was caused by an accident. The same court decided similarly in Peoria Ry. Terminal Co. v. Industrial Board, 279 Ill. 352, 116 N.E. 651; W. A. Jones Foundry & Machine Co. v. Industrial Commission, 303 Ill. 410, 135 N.E. 754. The Supreme Court of Pennsylvania made a similar decision in Samoskie v. Philadelphia & Reading Coal & Iron Co., 280 Pa. 203, 124 A. 471.

In Fowler v. Risedorph Bottling Co., 175 A.D. 224, 161 N.Y.S. 535, we find a review of many cases presenting facts similar to those in the case at bar. The workman in that case suffered a cerebral hemorrhage while lifting a barrel, and it is claimed that his...