In re Death of Larson

• Decision Date: 29 July 1929
• Docket Number: 5331
• Parties: In the Matter of the Death of ANDREW LARSON. v. BLACKWELL LUMBER COMPANY, a Corporation, Employer, and NORTHWEST INDEMNITY EXCHANGE, Surety, Respondents BERGETTE LARSON, Widow of ANDREW LARSON, and HELGA LARSON, Administratrix of the Estate of ANDREW LARSON, Appellants,
• Court: Idaho Supreme Court

279 P. 1087

48 Idaho 136

In the Matter of the Death of ANDREW LARSON.

BERGETTE LARSON, Widow of ANDREW LARSON, and HELGA LARSON, Administratrix of the Estate of ANDREW LARSON, Appellants, v. BLACKWELL LUMBER COMPANY, a Corporation, Employer, and NORTHWEST INDEMNITY EXCHANGE, Surety, Respondents

No. 5331

Supreme Court of Idaho

July 29, 1929

WORKMEN'S COMPENSATION LAW-COMPENSABLE INJURY-AGGRAVATION OF PRE-EXISTING DISEASE-INDUSTRIAL ACCIDENT BOARD-FINDINGS-APPEAL-SCOPE OF REVIEW.

1. Employee need not be in perfect health and physical condition prior to an accident to entitle him to compensation, under C S., sec. 6217, and, if he had injury or pre-existing physical weakness which reduced his ability to work below that of normal man, and he thereby was more susceptible to injury yet if he was able to do work and was employed, and in course of employment received an injury, he was entitled to an award notwithstanding the former injury.

2. Under C. S., sec. 6270, in workmen's compensation cases courts are limited to review of questions of law, application of law to undisputed facts, whether evidence sustains findings of Industrial Accident Board, and are empowered to consider competency, relevancy and materiality of the evidence and to determine whether or not there is a substantial conflict in the evidence.

3. There must be competent and substantial evidence to support findings of Industrial Accident Board and district court and, if such findings and decision are unsupported as matter of law, supreme court may set aside such findings and decision.

4. Where, as result of employee's lifting tackle into wagon and attempting to put burr on bolt, latent physical defect aneurism, was accelerated or aggravated and progressed further, causing death, strain, even though not unusual, was an accident that was compensable under Workmen's Compensation Act, C. S., secs. 6217, 6323, as amended by Sess. Laws 1927, chap. 106, sec. 20.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Proceeding under Workmen's Compensation Law. Judgment affirming order of Industrial Accident Board denying compensation. Reversed and remanded.

Reversed and remanded, with instructions. Costs to appellants.

J. Ward Arney, for Appellants.

Compensation laws do not discriminate between the physically perfect and imperfect employee. (In re Maddon, 222 Mass. 487, 111 N.E. 379; In re Fisher, 220 Mass. 581, 108 N.E. 361; In re Brightman's Case, 220 Mass. 17, 107 N.E. 527, L. R. A. 1916A, 321; In re McAuliffe, 7 N.C. C. A. 654; Creek Coal Co. v. Calvert, 68 Ind.App. 474, 119 N.E. 519, 120 N.E. 709; Draper v. Lore & Co., 7 N.C. C. A. 655; Winter v. Atkinson Frizelle Co., 37 N.J.L. 195, 10 N.C. C. A. 756, 8 N.C. C. A. 102, 7 N.C. C. A. 646; Nicholson v. Roundup Coal Min. Co., 79 Mont. 358, 257 P. 270.)

It is not necessary that the employee receive some external blow for the injury to be compensable. (Beck Min. Co. v. State Industrial Com., 88 Okla. 34, 28 A. L. R. 197, 211 P. 69.)

Perfect health of employee prior to accident is not prerequisite to compensation. (O'Gara Coal Co. v. Industrial Com., 320 Ill. 191, 150 N.E. 640.)

Death from pre-existing heart trouble aggravated by accident held result of accident. (Pisko v. Nelson, 4 N. J. Misc. 154, 132 A. 301; Smith v. Primrose Tapestry Co., 285 Pa. 145, 131 A. 703.)

Rupture in region of heart caused by exertion, together with high blood pressure and diseased arteries, held to be a fortuitous event and compensable. (Cole v. Department of Labor and Industries, 137 Wash. 538, 243 P. 7.)

Respondents contend for the finality of the findings of fact of the Board unless the findings are ". . . . without any evidence whatever to support it" and "where there is a conflict of testimony." This is the California rule, rejected in Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 228.

Ralph S. Nelson, for Respondents.

"On an appeal in a compensation case, the findings of the fact made by the Industrial Accident Board, based on substantial and competent evidence are conclusive on the district and supreme court." (Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Reader v. Milwaukee Lbr. Co. et al., 47 Idaho 380, 275 P. 1114; Butler v. Anaconda Copper Co., 46 Idaho 326, 268 P. 6.)

"A judgment of the State Industrial Commission is final as to all questions of fact, and this court is not authorized to weigh the evidence upon which a finding of fact is based." (Courson v. Consolidated Fuel Co., 121 Okla. 170, 249 P. 155; Hardisty v. Woodward Iron Co., 214 Ala. 256, 107 So. 837; Anderson v. Escanaba & L. S. R. Co., 234 Mich. 643, 209 N.W. 40; Vorbnoff v. Mesta Mach. Co., 286 Pa. 199, 133 A. 256.)

"Where a servant sustained an inguinal hernia while lifting block of timber weighing about 200 pounds without slipping or falling or being struck by the timber, nothing out of the ordinary happening, it being his duty to lift such timbers and having lifted them before, the injury was not 'accidental' within the meaning of the Workmen's Compensation Act." (Tackles v. Bryan & Detwiler, 200 Mich. 350, 167 N.W. 36.)

"An injury received by a workman, while engaged in his usual work without intervention of something unusual or fortuitous is not an 'accident.'" (Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355, 167 N.W. 37; American Digest, "Master and Servant," 372.)

BUDGE, C. J. Givens, T. Bailey Lee and Varian, JJ., concur. Wm. E. Lee, J., dissents.

OPINION

BUDGE, C. J.

This proceeding is here for review on appeal from a judgment of the district court of the eighth judicial district affirming an order of the Industrial Accident Board denying compensation to Bergette Larson, widow of Andrew Larson. Deceased was in the employ of the Blackwell Lumber Company at, and for some four years prior to, his death. The court found, among others, substantially the following facts: That on April 19, 1927, shortly after noon, the deceased, as a part of his regular work, was helping to place certain tackle, consisting of a triple and double block and about 300 feet of rope, into a wagon; that the triple block weighed about 110 pounds, the double block about 80 pounds; that the deceased and one of his colaborers lifted the triple block for the purpose of placing it on top of the rope in the wagon, when it was found that the tackle had been loosened from the railroad; that the colaborer and deceased then leaned the triple block against a board and deceased held it there until the colaborer got on the wagon; that the deceased then got underneath for the purpose of putting a bolt in the block; that when the deceased came out from underneath he leaned against a timber and explained that he could not get the burr on the bolt because he had a pain in his chest; that after leaning against said timber a short time the deceased left his place of employment and walked to his home, a distance of about one and one-half miles, and was immediately taken to a physician, who examined him; that the deceased returned to his home shortly after 5 o'clock, sat around the house with his hand over his face, suffering with severe pain in his chest; that he went to bed that night about 9:30 o'clock and at 1 o'clock the next morning his wife called a physician, who upon arrival found the deceased completely unconscious, in which condition he remained for about an hour and a half, after which he partly recovered consciousness; that later he lapsed into unconsciousness, the pupils of his eyes being distended unequally, in which condition he remained until he died, about the hour of 10 o'clock on the morning of April 21, 1927; that prior to April 19, 1927, the deceased had been suffering with a dissecting aneurism of the aorta and vegetation had formed on the aortic valve; that on said April 19, 1927, at the time he felt the pain in his chest while attempting to put the burr on the bolt, the dissection of the wall of the aorta spread farther than it had been; that after the deceased went to bed on the evening of April 19, 1927, a cerebral embolism formed and blood seeped from the aneurism into the pericardium, forming a hemopericardium from which he died on April 21, 1927; that the death of the deceased was not the result of a personal injury by accident arising out of and in the course of his employment with the defendant Blackwell Lumber Company.

Appellants specify 24 assignments of error. We do not deem it necessary to set out in haec verba these assignments, and will discuss only such as we deem important to a proper determination of the questions before us.

Attention is called by respondents to the amendments made to the Workmen's Compensation Act by Sess. Laws 1927, chap. 106, p. 136 et seq. The alleged accident in this case occurred April 19, 1927, and the deceased died April 21, 1927. The amendments as contained in the Session Laws of 1927 were approved March 2, 1927, and were in force on the date of the alleged accident and death.

Under the amendments of 1927, respondents contend that to authorize compensation for an injury there must be an accident, that is, a "slipping, falling or unexpected happening outside of and disconnected with the personal injury"; that "personal injury" is not synonymous with "accident," and under the facts as found by the board there was no accident which caused or contributed to the alleged personal injury from which deceased died. C. S., sec. 6323, is as follows:

"'Injury' or 'personal injury' includes death resulting from injury within two years."

As amended by the Session Laws of 1927, p. 148, the section reads:

"'Injury' or 'personal injury' includes death resulting from injury within...