McNeil v. Panhandle Lumber Co.

• Citation: 34 Idaho 773,203 P. 1068
• Parties: S.E. MCNEIL, Respondent, v. PANHANDLE LUMBER COMPANY and AETNA CASUALTY AND SURETY CO., Appellants
• Decision Date: 31 December 1921
• Court: United States State Supreme Court of Idaho

203 P. 1068

34 Idaho 773

S.E. MCNEIL, Respondent, v. PANHANDLE LUMBER COMPANY and AETNA CASUALTY AND SURETY CO., Appellants

Supreme Court of Idaho

December 31, 1921

WORKMEN'S COMPENSATION LAW - CONSTRUCTION - INDUSTRIAL ACCIDENT BOARD-HEARINGS-RULES OF EVIDENCE-FINDINGS OF FACT - CONCLUSIVENESS - ACCIDENT - DEFINITION-TIME-TOTAL DISABILITY - PREVIOUS INJURY OR IMPAIRED HEALTH - APPEAL TO SUPREME COURT.

1. The workmen's compensation law of this state and all proceedings under it are to be liberally construed with a view to effect the object of said law and to promote justice.

2. In reviewing hearings before the industrial accident board upon the question as to whether the evidence submitted sustains the findings of the board, the courts will consider the competency, relevancy and materiality of the evidence according to the rules applicable to trials in courts.

3. The findings of fact of the industrial accident board, when supported by competent evidence, are conclusive on appeal to the district court or to this court, the jurisdiction of said courts being limited to a review of questions of law.

4. The word "accident" is used in the workmen's compensation law of this state in the "popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed."

5. In case of claims under the workmen's compensation law if the accident is one whose happening cannot be fixed as of a specific date, it is sufficient to establish such time with reasonable probability.

6. "Total disability" as used in the workmen's compensation law of this state takes no account of a state of partial disability or impaired health existing in the claimant previous to the happening of the accident claimed to have caused such "total disability."

7. Appeal lies to this court from a judgment of a district court affirming or reversing an award of compensation by the industrial accident board.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

From judgment of district court affirming award of industrial accident board defendant appeals. Motion to dismiss appeal denied. Judgment affirmed.

Judgment of the district court affirmed, with costs to respondent.

H. M Morey and Post, Russell & Higgins, for Appellants.

Under the constitutional provisions and the general statute relating to appeals to the supreme court and the Industrial Insurance Act itself, the appellants are entitled to an appeal. (Sec. 9, art. 5, Const.; Maple v. Williams, 15 Idaho 642, 98 P. 848.)

"The word 'accident' as used in a Compensation Act requiring the injury compensated for to be by 'accident,' is held to be employed in its ordinary sense as meaning an unlooked for and untoward event which is not expected or designed." (Corpus Juris, Workmen's Compensation, pp. 64, 68; 1 Honnold on Workmen's Compensation, p. 274, 280; Liondale Bleach, Dye & Paint Works v. Riker, 85 N.J.L. 426, 89 A. 929; Prouse v Industrial Commission of Colorado, 69 Colo. 382, 194 P 625; Pimental's Case, 235 Mass. 598, 127 N.E. 424; Lane v. Horn etc. Baking Co., 261 Pa. 329, 104 A. 615, 13 A. L. R. 963; McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617; Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262; 204 S.W. 152, 13 A. L. R. 524; Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445, 164 N.W. 537; Bucyrus Co. v. Townsend, 65 Ind.App. 687, 117 N.E. 656; In re Sanderson's Case, 224 Mass. 558, 113 N.E. 355; Steel v. Cammell, Laird & Co. (Eng.), 2 K. B. Div. [1905] 232; Adshead's Elliott on Workmen's Compensation, 6th ed., pp. 3-5 et seq.; Cooke v. Holland Furnace Co., 200 Mich. 192, 166 N.W. 1013; Adams v. Acme White Lead etc. Works, 182 Mich. 157, Ann. Cas. 1916D, 689, 148 N.W. 485, L. R. A. 1916A, 283; De Witt v. Jacoby Bros., 1 Cal. Ind. Acc. Com. Dec. (No. 11, 1914) 4, cited in 6 N.C. C. A. 488, note.)

The loss of an eye by a one-eyed man does not constitute a permanent total disability. (Sec. 6234, I. C. S.; Winn v. Adjustable Table Co., 193 Mich. 127, 159 N.W. 372, 163 N.W. 906; Weaver v. Maxwell Motor Co., 186 Mich. 588, Ann. Cas. 1917E, 238, 152 N.W. 993, L. R. A. 1916B, 1276; 8 A. L. R., note, p. 1325.)

Potts & Wernette, for Respondent.

The only logical and reasonable construction that can be placed upon all the statutes taken together is that it must have been intended by the legislature, when an injury causes total incapacity and permanent disability to an employee, that the total disability statute should apply. (In re Madden, 222 Mass. 487, 111 N.E. 379, L. R. A. 1916D, 1000; In re Branconnier, 223 Mass. 273, 111 N.E. 792.)

"Where, by reason of a previously impaired physical condition of the employee, an accident results in a total incapacity, an award of compensation for total incapacity is permitted under some of the authorities, although a normal employee would have been only partially incapacitated." (Corpus Juris, Workmen's Compensation Acts, p. 94; Schwab v. Emporium Forestry Co., 167 A.D. 614, 153 N.Y.S. 234.)

The provisions of this act have been very liberally construed, in order to give the law the effect and the protection which it intended. (Pettit v. Mendenhall, 2 Cal. Ind. Acc. Com. Dec. 238; Smith v. Munger Laundry Co., 1 Cal. Ind. Acc. Com. Dec. 168; Dalton v. Employers' Liability Assurance Corp., Ltd., cited in 12 N.C. C. A. 327, note; Santa v. Industrial Acc. Com., 175 Cal. 235, 165 P. 689; Schroetke v. Jackson-Church Co., 193 Mich. 616, 160 N.W. 383; Hartford Accident & Indemnity Co. v. Industrial Acc. Com., 32 Cal.App. 481, 163 P. 225; Fleming v. Robert Gair Co., 176 A.D. 23, 162 N.Y.S. 298; Turvey v. Brintons, Ltd. (Eng.), 1 K. B. [1904] 328; Shell Co. of California v. Industrial Acc. Com., 36 Cal.App. 463, 172 P. 611; Fidelity & Casualty Co. of New York v. Industrial Acc. Com., 177 Cal. 614, 171 P. 429, L. R. A. 1918F, 856.)

DUNN, J. Rice, C. J., Budge and McCarthy, JJ., and McNaughton, District Judge, concur.

OPINION

DUNN, J.

In January, 1920, respondent was in the employ of appellant Panhandle Lumber Company, hereinafter called the Lumber Company, and was engaged in building rollways and handling saw-logs. He worked alone, and the undisputed testimony as shown by the record is that the labor he performed involved a considerable amount of heavy lifting. He claims to have lost the sight of his right eye by detachment of the retina as a result of this labor and to have been totally disabled thereby, the sight of his left eye having been lost through an accident some eight years before. He applied to respondent, the insurer of the Lumber Company, the Aetna Casualty and Surety Company, hereinafter called the Surety Company, for compensation on account of said injury, but said Surety Company denied liability. Thereafter respondent demanded of the industrial accident board a hearing before a committee of arbitration, which was granted, and the arbitration committee found according to respondent's contention, awarding him $ 12 per week for a period of thirteen weeks and three days, that being the period of temporary total incapacity for work, and $ 12 per week for a period of 400 weeks.

Appellants thereupon made application to the industrial accident board, hereinafter called the board, for a review of the decision of the committee of arbitration, which was granted. By stipulation of the attorneys for appellants and respondent the testimony taken before the arbitration committee was admitted and considered by the board the same as if the witnesses were personally present and testifying before said board, and in addition thereto certain oral and written testimony was introduced on behalf of appellants. The board made findings of fact and rulings of law and awarded respondent the sum of $ 12 per week for fifteen weeks and three days, the period of temporary total incapacity for work, and $ 12 per week for a period of 384 weeks and four days for the reason that the injury sustained by respondent had caused total disability; and further awarded him $ 6 per week during the remainder of his life, said allowance of $ 6 per week to begin after the expiration of said period of 384 weeks and four days. The board further found that there was then due respondent the sum of $ 816, the amount of compensation that had accrued from the first day of February, 1920, to the date of said decision. The award made by said board required further that after the payment of said sum of $ 816 the remainder of said award should be paid to respondent in monthly payments commencing thirty days from the date of said decision.

Appeal was taken from the decision of the board to the district court of Kootenai county and said court on reviewing said decision made findings of fact sustaining the decision of the board in every particular and entered its decree affirming in toto the award made by said board.

Appeal was taken from the judgment of the district court, which respondent now moves to dismiss on the ground that the law of this state makes no provision for such appeal, and on the further ground that this court has no jurisdiction to consider such appeal.

Section 9, art. 5, of the state constitution provides: "The supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof."

C. S., sec. 7149, provides that "A judgment or order, in a civil action, except when expressly made final, may be reviewed as prescribed in this code, and not otherwise."

C. S., sec. 7151, provides: "Any party aggrieved may appeal in the cases prescribed in this code."

Section 6270A of the workmen's compensation law, Session Acts 1921, page 479, referring to the action to be taken by the district court on deciding a...