Parkison v. Anaconda Copper Mining Co., 6310

• Decision Date: 29 April 1936
• Docket Number: 6310
• Citation: 56 Idaho 610,57 P.2d 1216
• Parties: MARY PARKISON, Appellant, v. ANACONDA COPPER MINING COMPANY and STATE INSURANCE FUND, Respondents
• Court: Idaho Supreme Court

57 P.2d 1216

56 Idaho 610

MARY PARKISON, Appellant, v. ANACONDA COPPER MINING COMPANY and STATE INSURANCE FUND, Respondents

No. 6310

Supreme Court of Idaho

April 29, 1936

WORKMEN'S COMPENSATION LAW-DEATH RESULTING FROM ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT-EVIDENCE, SUFFICIENCY OF-BURDEN OF PROOF.

1. In compensation case, claimant had burden of showing by preponderance of evidence that employee's death resulted from an accident arising out of and in course of his employment (I. C. A., secs. 43-1001, 43-1101).

2. Evidence that death of employee more than year after he inhaled sulphuric acid gas while at work resulted from inhalation of such gas held insufficient to show that death resulted from accident arising out of and in course of his employment, so as to justify award of compensation for his death (I. C. A., secs. 43-1001, 43-1101).

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. Jay L. Downing, Judge.

Appeal from a judgment of the district court affirming an order of the industrial accident board denying compensation for the death of a workman alleged to have been caused by accident arising out of and in the course of his employment. Affirmed.

Judgment affirmed, with costs to respondents.

Anderson Bowen & Anderson, for Appellant.

Findings of the Industrial Accident Board of the state of Idaho will not be sustained on appeal to the Supreme Court of the state of Idaho when supported only by negative testimony and when said findings are contrary to the positive testimony. (Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; Ramsay v. Sullivan Min. Co., 51 Idaho 366 6 P.2d 856; Sullivan Mining Co. v. Aschenbach, (C. C. A.) 33 F.2d 1.)

Regardless of pre-existing weakness or physical disability, if an employee is employed and receives personal injury by accident arising out of and in the course of his employment, full compensation is to be paid. (Hanson v. Independent School Dist. No. 11, 50 Idaho 81, 294 P. 513; Beaver v Morrison-Knudsen, supra; Scarborough v. Beardmore, 52 Idaho 180, 12 P.2d 771.)

B. W. Davis and P. C. O'Malley, for Respondents.

It is well settled that the burden rests upon the one claiming compensation to show by competent testimony, direct or circumstantial, not only the fact of an injury, that it occurred in connection with the alleged employment and that it both arose out of and in the service at which the injured party was employed. (Walker v. Hyde, 43 Idaho 625, 253 P. 1104.)

MORGAN, J., AILSHIE, J. Givens, C. J., Ailshie, J., and Morgan, J., concurring. Budge, J., dissents. Holden, J., did not sit at the hearing nor participate in the opinion.

OPINION

MORGAN, J.

May 13, 1932, William T. Parkison, employed by Anaconda Copper Mining Company, hereinafter called the company, as a chemist at its mine at Conda, made an analysis of a sample of ore from the mine. In doing so he placed the ore in sulfuric acid and applied heat to it by means of an electric plate, under a hood connected with a ventilator, in his employer's laboratory. While the sample was heating he went into a room adjoining the laboratory where he remained about fifteen minutes talking to his assistant. He then opened the door into the laboratory room, which had filled with sulfuric acid gas. Immediately after Parkison entered the room his assistant saw him coming out on his hands and knees, coughing violently. The assistant helped him to his feet and into the open air. This occurred between three and four o'clock in the afternoon. Parkison did not appear to have suffered any serious injury from the gas and went home about four o'clock. He worked at his regular employment during a part of May 14, and the record is not clear as to whether he quit during the day because he was not feeling well or whether he had finished the performance of his duties. The work at which he was employed was discontinued on that day and he did no more work for the company thereafter. June 21, 1933, Parkison died, and his widow, appellant herein, filed a claim with the industrial accident board against the company and State Insurance Fund, its surety, for an award of compensation provided for by I. C. A. 43-1101, a section of the workmen's compensation law. Hearing was had and resulted in an order by the board denying compensation. Appeal to the district court resulted in judgment affirming the order and the case is here on appeal from the judgment.

In September, 1930, Parkison, while employed by the company, in its laboratory, was severely injured by an explosion of nitric-hydrochloric acid. He made claim for compensation which was allowed and was settled by agreement between the parties. The agreement was approved by the industrial accident board and compensation for that injury is not involved in this case.

The only material conflict in the evidence consists of difference of opinion of expert witnesses as to whether Parkison's contact with sulfuric acid gas on May 13, 1932, caused his death. Each party litigant produced two physicians as witnesses. One of those called on behalf of appellant testified he treated Parkison for his injury of 1930, but did not treat him for that of May 13, 1932; that he commenced treating him again in March, 1933, and his condition was such as a man would be suffering from who had inhaled quantities of sulfuric acid gas; that he saw the patient, from time to time, until he died. He further testified:

"Q. From your experience as a physician and surgeon and your number of years practice, as you have stated, what is your opinion as to whether this man died from the effects of breathing sulfuric acid fumes into his lungs or not?

"A. It could be all right."

On cross-examination:

"Q. Doctor, do you mean to say that you know, that you want to state as a physician and surgeon that it is your opinion that this man died because he had inhaled some gas on May 13, 1932?

"A. Not necessarily. I know he died from the condition of his lungs, and if he had an injury in 1932 it would aggravate it and probably could cause it.

"Q. Could cause it?

"A. Yes.

"Q. That is about as close as you could say, doctor?

"A. That is all I could say."

Evidence of that character is insufficient to prove death was due to the accidental injury relied on by appellant as a basis of claim for compensation. (Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992.)

June 3, 1932, Parkison filed claim for compensation for his injury alleged to have been incurred by contact with gas on May 13, of that year. In his claim he stated the injury consisted of "corrosion of membranes in nose and throat." Upon that claim he was paid compensation for disability during a period of ten weeks and three days. The other doctor called as a witness by appellant made the attending physician's report in support of Parkison's claim. Therein the following questions and answers appear:

"1. Date of injury? 5/13/32. Date of first treatment? Same.

"3. Give an accurate description of the nature and extent of the injury? Acid burn of the lungs and upper air passages also of the face.

"8. Describe the treatment fully? Rest, morph. for pain, inhalations of medicated vapors."

That physician testified on direct examination:

"A. If I recall rightly, I took care of Mr. Parkison for the second accident, but I saw him in consultation with Dr. Tigert, and he called at the office several times, but I don't believe I took care of Mr. Parkison in the first accident. . . .

"Q. Did you make any examination immediately after May 13, 1932, immediately after this second accident?

"A. Yes, he was under my care.

"Q. Now, with respect to this first examination that you made after that second accident, what did you find there with reference to his lungs, if anything?

"A. He scarcely had any lung tissues left, practically none. Right from the start he seemingly didn't use his lungs to breathe. He used the accessory muscles, these here (pointing). Instead of expanding his chest outwards like this (illustrating) he did this way (illustrating). He would use his shoulder, the accessory muscles, in breathing.

"Q. Did you notice any change in reference to that method of breathing from the first time you saw him or not?

"A. Oh, yes, he never breathed that way before. He breathed practically natural before."

He testified on cross-examination:

"Q. And you attributed his death a year and a month or a little over after the 13th of May, 1932, directly to the breathing of sulfuric acid on May 13, 1932?

"A. I do.

"Q. You don't attribute it to the first accident at all?

"A. I think the first accident lowered this man's vitality, lowered his lung capacity more than half, but he was getting along on a half a lung pretty well and probably could have lived quite a while on half a lung. A great many people in the world are living on probably less than half a lung, but now a man that is living on a half a lung or small amount of lung tissue is not able to go out and do physical hard work."

May 21, 1931, almost a year before Parkison encountered the sulfuric acid gas, this witness wrote a letter, with reference to his condition, to the manager of state insurance fund, in which he said:

"You know that man is slipping and slipping pretty fast. I was just wondering for the interest of the state if it would not be a pretty good idea for you to get a settlement with him on a 50% disability, or else you may have to pay a death claim."

This witness operated on Parkison's nose August 16, 1932, and testified as to what made the operation necessary, as follows:

"Q. Well, did this second accident have anything to do with his trouble with his nose?

"A. Yes, it would add to it.

"Q. Well, what was the cause of that?

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