Nistad v. Winton Lumber Company

• Decision Date: 02 December 1938
• Docket Number: 6591
• Court: Idaho Supreme Court
• Parties: REGINA NISTAD, Widow of AXEL NISTAD, Deceased, Appellant, v. WINTON LUMBER COMPANY, a Corporation, Employer, and WORKMEN'S COMPENSATION EXCHANGE, Surety, Respondents

85 P.2d 236

59 Idaho 533

REGINA NISTAD, Widow of AXEL NISTAD, Deceased, Appellant, v. WINTON LUMBER COMPANY, a Corporation, Employer, and WORKMEN'S COMPENSATION EXCHANGE, Surety, Respondents

No. 6591

Supreme Court of Idaho

December 2, 1938

WORKMEN'S COMPENSATION - COMPENSABLE INJURY-AGGRAVATION OF PRE-EXISTING DISEASE - CAUSE OF DEATH - PROOF OF PROBABLE CAUSE-FINDINGS OF BOARD.

1. Findings of the Industrial Accident Board that cause of death of employee was unknown, followed by finding that employee's death was caused by disease, not by injury were contradictory and would not warrant denial of compensation. (I. C. A., sec. 43-901 et seq.)

2. Aggravation or acceleration of pre-existing disease or weakened condition, if caused by accident, results in industrial injury or death of employee and is compensable. (I. C. A., sec. 43-901 et seq.)

3. In proceeding for compensation for death of employee, it was not necessary that the exact cause of employee's death be proven, since it was sufficient to prove the probable cause. (I. C. A., sec. 43-901 et seq.)

4. Where parties in compensation proceeding failed to produce satisfactory evidence of cause of death of employee, the Industrial Accident Board had duty to make full and exhaustive inquiry. (I. C. A., sec. 43-901 et seq.)

5. Evidence warranted finding that deceased, who was employed in piling lumber when injured, was an "employee" and not an "independent contractor," as respects employer's liability for workmen's compensation. (I C. A., sec. 43-901 et seq.)

APPEAL from the Industrial Accident Board.

Proceeding by Regina Nistad for compensation under the Workmen's Compensation Act, opposed by Winton Lumber Company, employer and Workmen's Compensation Exchange, surety. From an order of the board denying compensation, claimant appeals. Reversed and remanded with directions.

Reversed and remanded with directions.

J. Ward Arney, for Appellant.

The act is to be liberally construed. (McNeil v. Panhandle Lbr. Co., 34 Idaho 773, 203 P. 1068.)

Compensation will be granted for the aggravation by employment strain of a pre-existing diseased or defective condition. (McNeil v. Panhandle Lbr. Co., supra.)

The cause of injury is not required to be proved with absolute certainty.

When persons unfit for physical exertion willingly choose the chances involved in honorable, hazardous labor, the act will relieve in case of accident, as well as for the physically sound who may be accidentally injured. (In re Larson, 48 Idaho 136, 279 P. 1087, 1089.)

Spencer Nelson and Ralph S. Nelson, for Respondents.

There was no accident proven in the employment of Axel Nistad. It was not proven that any "accidental injury" was suffered by Nistad. It was not proven that the deceased suffered any "injury" or "personal injury" which was the result of an accident. Sec. 43-1001, I. C. A.--"accidental injury," sec. 43-1809, I. C. A.--"to be compensable an injury must be the result of an accident." (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Aldrich v. Dole, 43 Idaho 30, 249 P. 87; Larson v. Blackwell Lumber Co., 48 Idaho 136, 279 P. 1087.)

HOLDEN, C. J. Morgan, Budge and Givens, JJ., concur. Ailshie, J., did not participate in the decision.

OPINION

HOLDEN, C. J.

This is a proceeding by Regina Nistad to recover compensation for the death of her husband.

Respondent Winton Lumber Company is now, and for a number of years has been, engaged in the operation of a sawmill at Gibbs, in Kootenai county, Idaho, and was, and is, insured by respondent Workmen's Compensation Exchange under the provisions of our workmen's compensation statute.

For several years Axel Nistad was employed as a regular piler but for about a year prior to June 1, 1937, he was usually employed in the capacity of a "spare piler." When Nistad came home from work on the evening of May 3, 1937, he was very pale and told his wife that he had had a funny experience that day and that as he was just through unloading some planks "I felt a strain and I couldn't do anything for a long time" and "tasted blood." He also complained of feeling choky and full in his chest. However, he continued to work but appeared pale, had little appetite and was unable to stoop over in his usual normal manner because of pain in the chest. On the morning of June 1, 1937, Nistad ate very little breakfast and appeared to his wife to be in greater distress than usual and told her, just before leaving for work at the mill shortly after 6 o'clock in the morning, that he hoped he would not have to pile lumber that day. He arrived at the mill about 6:30 A. M. and went to work with a lumber piling crew. The sawmill had not yet started work for the day when Nistad and his working "partner" piled a truck load of white pine boards, 1"x10"x16'. The two men then proceeded to roof a lumber pile which had reached the height of about 18'. While thus employed, Nistad was on top of the lumber pile and his "partner" was on the loaded lumber truck. His partner passed a white pine board, weighing from 25 to 30 pounds, up to Nistad and reached for another when he noticed the last board he had passed up had not been placed in position and then called to Nistad. Receiving no reply, he became alarmed and climbed to the top of the pile where he found Nistad lying face downward with the board across his body. At that time Nistad was unconscious and died within three or four minutes.

His widow, Regina Nistad, filed a claim for compensation, and following the hearing, the board found that at all times during the month of May, 1937, and on the 1st day of June of that year, Nistad was employed by respondent Winton Lumber Company and "that the exact cause of the death of said Axel Nistad is unknown, but that death was caused by disease and not by injury; that said deceased did not sustain a personal injury by accident arising out of and in the course...