Meyer v. Roettele

• Decision Date: 21 December 1935
• Docket Number: 7818.
• Parties: MEYER et al. v. ROETTELE et al.
• Court: South Dakota Supreme Court

264 N.W. 191

64 S.D. 36

MEYER et al. v. ROETTELE et al.

No. 7818.

Supreme Court of South Dakota

December 21, 1935

Appeal from Circuit Court, Day County; Van Buren Perry, Judge.

Proceeding under the Workmen's Compensation Act by Gustave Meyer and Elsie Meyer for the death of Maurice Meyer, their son claimants, opposed by Elmer Roettele, employer, and the Western Surety Company, insurer. From a judgment affirming an award by the Industrial Commissioner, the employer and insurer appeal.

Reversed and remanded, with directions.

Tom Kirby and Hans Hanson, both of Sioux Falls, for appellants.

J. G McFarland and K. C. Paterson, both of Watertown, for respondents.

ROBERTS Judge.

This is a claim made by the parents of Maurice Meyer against Elmer Roettele, employer, and the Western Surety Company, insurer under the provisions of the Workmen's Compensation Act (Rev. Code 1919, § 9398 et seq.) for compensation for the death of their son. The matter came on for hearing before the industrial commissioner on November 25, 1932, acting in lieu of the board of arbitration. The commissioner denied compensation, holding in effect that death was not caused by accidental injury arising out of and in the course of employment. Plaintiffs petitioned for a review, and the industrial commissioner on reconsideration of the evidence found that defendant Roettele was engaged in operating a threshing machine, and in the crew employed by him was the decedent, who was paid daily wages and in addition thereto was furnished board; that at the noon hour on August 1, 1932, Maurice Meyer and others partook of a meal at the house of John Knoll for whom Roettele was then threshing; that the meal was furnished under an arrangement made by and with the operator of the threshing machine; that at this meal Maurice Meyer ingested a toxin produced by a germ called bacillus botulinus, and from the effects of this toxin Meyer died on August 4, 1932. The commissioner, concluding that deceased had suffered an accidental injury arising out of and in the course of his employment, made an award which was affirmed by the circuit court. Defendants have appealed.

Defendants contend that the evidence conclusively shows that decedent was a victim of a disease which did not result from an accidental injury. The opinion of attending physicians established beyond question that Meyer's illness was the result of food poisoning called botulism. Dr. Karlins, a witness for the plaintiffs, testified: "I treated Meyer in the month of August, 1932. * * * In my opinion the death of Maurice Meyer was due to botulinus poisoning. * * * This type of poison is a toxin produced by a germ called the bacillus botulinus. The poison is elaborated by this germ and the usual source is food-usually preserved or canned food. The bacillus is what we call an anaerobe; that is it lives better under conditions in which there is no free oxygen and it lives by taking the oxygen out of some other substance. It produces this poison or toxin and it is the toxin that produces these symptoms. It is not the germ itself. It is the toxin that has been made in the food and is eaten and absorbed by the body, and its specific action is paralysis of certain nerves in the body. * * * The poison comes from the outside into the body just the same as a snake bite and there would be that difference in which it would not be the same as a typhoid bacilli working upon the body and creating the poison in the body. In other words in typhoid or cases of disease of that type the bacilli enter the body in some substance and then proceed to act on the body; whereas in this case the poison enters the body from the outside and acts immediately upon the body. * * * This term (botulism) is considered a food intoxication by most medical authorities. It is classified as a disease. It has definite symptoms, and runs a definite course and is caused by definite bacilli. In that way it is no different from any other disease." Dr. Pfister, also a witness for the plaintiffs, tesfied: "In my opinion, from my examination of Maurice Meyer, the direct, immediate and sole cause of his death was botulism. This is a condition whereby the body is attacked with a toxin or poison manufactured by the bacillus botulinus and taken into the body. The bacilli themselves are not the poison. The fact that the bacilli enter the body would not cause botulism but the poison created by the action of the bacilli is what injures the body. The poison particularly attacks the nerve filaments."

The Workmen's Compensation Act provides compensation "for personal injury or death by accident arising out of and in the course of employment." Section 9437, R.C. 1919. The statutory definition of "personal injury" specifically excludes "a disease in any form except as it shall result from the injury." Section 9490, R.C. 1919. The original Workmen's Compensation Law, enacted in England in 1897, provided for compensation for "injury by accident," and the compensation acts of most states contain the same language or phraseology to the effect that the injury must be of an accidental nature or origin. In the case of Fenton v. Thorley, [1903] A.C. 443, the question arose as to the meaning of the word "accident." It was held that this word was used in the popular and ordinary sense as denoting an unlooked-for and untoward event which is not expected or designed. In a subsequent case, Brintons v. Turvey, [1905] A.C. 230, 2 Ann.Cas. 137, a workman who contracted anthrax while engaged in handling wool in the course of his employment sought compensation. Referring to its former decision as authority for the meaning to be given the word "accident," the court sustained right of recovery. Under this decision a disease of sudden origin contracted in the course of employment may constitute an injury by accident. In the opinion of Lord Macnaghten, it was said: "It was an accident that the noxious thing that settled on the man's face happened to be present in the materials which he was engaged in sorting. It was an accident that this noxious thing escaped the down draught or suck of the fan which the Board of Trade, as we were told, requires to be in use while work is going on in such a factory as that where the man was employed. It was an accident that the thing struck the man on a delicate and tender spot in the corner of his eye. It must have been through some accident that the poison found entrance into the man's system. * * * I cannot doubt that the man's death was attributable to personal injury by accident arising out of, and in the course of, his employment. The accidental character of the injury is not, I think, removed or displaced by the fact that, like many other accidental injuries, it set up a well-known disease, which was immediately the cause of death."

It was stated in these cases that it is not every disease contracted in the course of employment that is to be regarded as an injury by accident.

It is the contention of counsel for appellants that the right to compensation for disease exists only where disease is produced or aggravated by an injury which is caused by an unexpected event, and in support of this contention counsel urge that the phrase "injury by accident" is to be given a meaning which would confine its application to instances where the cause of the injury was accidental. We are cited to the case of Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017, 1020. The Arizona court is of the view that the construction of the...