Paull v. Preston theatres Corporation, 6960

• Decision Date: 24 March 1942
• Docket Number: 6960
• Parties: GEORGE PAULL, Appellant, v. PRESTON THEATRES CORPORATION, a corporation, and STATE INSURANCE FUND, Respondents
• Court: Idaho Supreme Court

124 P.2d 562

63 Idaho 594

GEORGE PAULL, Appellant, v. PRESTON THEATRES CORPORATION, a corporation, and STATE INSURANCE FUND, Respondents

No. 6960

Supreme Court of Idaho

March 24, 1942

Rehearing denied April 27, 1942

WORKMEN'S COMPENSATION - FINDINGS OF INDUSTRIAL ACCIDENT BOARD-REVIEW-EVIDENCE, SUFFICIENCY OF-QUESTIONS OF LAW-COMPENSABLE INJURY-AGGRAVATION OF PRE-EXISTING DISEASE-NOTICE OF INJURY.

1. Findings of the Industrial Accident Board, when supported by substantial, competent evidence, will not be disturbed on appeal. (I. C. A. secs. 43-1408, 43-1409, 43-1413, as amended, Sess. L., 1937, c. 175.)

2. Findings of the Industrial Accident Board, when not supported by substantial, competent evidence, are not binding or conclusive on appeal, and will be set aside. (I. C. A. secs.

43-1408 43-1409, 43-1413, as amended, Sess. L., 1937, c. 175; Const art. 5, sec. 9, as amended in 1936.)

3. Whether findings of Industrial Accident Board are supported by substantial, competent evidence so as to be conclusive on appeal is a "question of law" to be determined by the court. (I. C. A. secs. 43-1408, 43-1409, 43-1413, as amended by Sess. L., 1937, c. 175.)

4. Evidence that employee was in good health before accident in course of employment, but that his legs, after being crushed in such accident, were black and blue and swollen, that employee could not walk and suffered pain, and that gradual deterioration of his condition necessitated amputation of legs, and testimony of physicians that, after accident employee had Buerger's disease, although they could not say whether employee had such disease before accident, and that accident might have caused condition necessitating amputation, did not support award denying compensation, but required award allowing compensation.

5. An employee is entitled to recover compensation for all the consequences attributable to an injury in acceleration or aggravation of pre-existing disease.

6. Mere pre-disposing physical condition does not affect the right to compensation.

7. An employer and insurer "waived" question of timely notice of employee's injury by failing to raise such question before the Industrial Accident Board, and such question could not be raised for the first time on appeal. (I. C. A. sec. 43-1202.)

Rehearing denied April 27, 1942.

APPEAL from order of Industrial Accident Board.

Proceedings under Workmen's Compensation Act. Order denying appellant compensation, reversed, remanded with instructions.

Award of the Board denying appellant compensation set aside, and cause remanded with instructions. Costs to appellant.

P. J. Evans, for Appellant.

"What constitutes an accident is something to be determined from the facts in the case. Generally an injury resulting from a casualty occurring without expectation or foresight is an accident within the contemplation of the law." (71 Corpus Juris No. 327, Page 563 et seq.)

The Industrial Accident Board found that claimant suffered an accident and that it arose out of his employment. (Finding V of Board Transcript, Page 97.)

"There is nothing within the act that limits its provisions to workmen who were previously in sound condition or good health." (McNeil v. Panhandle Lmbr. Co., 34 Idaho 773, 203 P. 1068; In Re Larson, 48 Idaho 136, 279 P. 1087; Strouse v. Hercules Mining Co., 51 Idaho 7, 1 P.2d 203; Murdock v. Humes & Swanstrom, 51 Idaho 459, 6 P.2d 472.)

Frank L. Benson, for Respondents.

To constitute accident "arising out of and in course of employment," within compensation law, there must be probable, and not possible connection between cause and effect. (Croy v. McFarland-Brown Lbr. Co., 51 Idaho 32, 1 P.2d 189.)

Claimant must show by a preponderance of evidence that disability arose from an accident arising out of and in the course of employment. (Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992; Strouse v. Hercules Mng. Co.)

No proceedings under the workmen's compensation act shall be maintained; unless a written notice of the accident shall be given to the employer as soon as practicable but not later than sixty days after the happening thereof, or unless the employer had actual notice of the accident, or unless the employer has not been prejudiced by such delay or want of notice. (Sec. 43-1202 I. C. A.; Sec. 43-1203 I. C. A.; Sec. 43-1205 I. C. A.; Wilson v. Standard Oil Co., 47 Idaho 208, 273 P. 758; Frost v. Idaho Gold Dredging Co., 54 Idaho 312, 31 P.2d 270.)

Notice of accident must be given as soon as practicable and within a reasonable time. (Sec. 43-1202 I. C. A.; Frost v. Idaho Gold Dredging Co., 54 Idaho 312, 31 P.2d 270.)

BUDGE, J. Givens, C.J., Morgan, Holden, and Ailshie, JJ., concur.

OPINION

BUDGE, J.

This is an appeal from a final order of the Industrial Accident Board denying appellant compensation for an alleged injury by accident arising out of and in the course of his employment, and in favor of his employer Preston Theatres Corporation, a corporation, and its surety, State Insurance Fund. In its findings of fact the Board found:

"That on the 30th day of January, 1941, the defendant Preston Theatres Corporation, was, and for several years prior thereto had been operating the Isis Theatre in the City of Preston and had secured the payment of compensation to its employees by insuring and keeping insured the same with the defendant, State Insurance Fund." (Finding No. 1.)

"That on said 30th day of January, 1941, the claimant, George Paull, was, and for several years prior thereto had continuously been, in the employ of the defendant, Preston Theatres Corporation as the Manager of the said Isis Theatre * * * in said City of Preston; * * * *." (Finding No. 2.)

"That as a part of his duties as Manager of said Isis Theatre the claimant looked after advertising the shows in said theatre, the writing and placing of placards and other display advertising and for the purpose of writing and preparing display advertising he, during all of the aforesaid time, maintained a workshop in the basement of his dwelling in Preston; that the maintaining of said workshop in his dwelling by the claimant was well known to, and acquiesced in, by his employer." (Finding No. 3.)

"That on the morning of the said 30th day of January, 1941, the claimant walked from his dwelling to the above mentioned Isis Theatre and conferred with some of his employees (;) there; later he returned to his dwelling for the purpose of getting some advertising matter; that he went into his workshop, got the advertising matter, put it into his automobile, which automobile had been driven into a passageway alongside of his dwelling; after he had put his advertising material into the said automobile, he backed the automobile out of the passageway to the street in front of his dwelling; that at that time there was snow on the ground on said street and when the automobile reached the street he could not move it further because there was no traction on the snowy ground; that he went to the porch of his dwelling, picked up a rug which was lying on it and called his wife to help him get the automobile started; that the wife entered the automobile and claimant from the rear thereof attempted to put the rug under the rear wheels for the purpose of obtaining traction for them; that he told his wife to start the car and the wife started the engine and spun the wheels backwards causing the rug on which claimant was standing to be drawn under the spinning wheels, one wheel passing over the claimant's legs; that the claimant was helped into his house where he laid down for a little while; that as a result of his legs being run over as above stated, they became badly discolored; that ()later and in the afternoon of said day he went to the Theatre where he showed his legs to some of the employees working in said Theatre and they observed that the legs were discolored." (Finding No. 4.)

"That the running over the claimant as above stated was an accident arising out of and in the course of his employment with the defendant, Preston Theatres Corporation." (Finding No. 5.)

"That after the said 30th day of January, 1941, the claimant never again walked from his dwelling to the said theatre but rode in his automobile; that as a result of said accident the claimant was not disabled for work for more than seven days and lost no earnings." (Finding No. 6.)

"That sometime about the 24th or 26th day of February, 1941, the claimant suffered so severely from pains in his legs that he called a physician and surgeon, which physician and surgeon called at claimant's house and examined him and found no evidence of any injury resulting from the above mentioned accident but found that he had intense pain in his right leg and was staggering on his feet; that claimant's right foot was blanched and that there was no circulation in his right leg but still a little pulsation in the ankle and under the knee of the left leg and that said left foot was also blanched; that about a week after the physician was first called and examined him, he caused the claimant to be taken to a hospital where later the claimant's left leg was amputated between the knee and ankle and his right leg between the knee and hip joint; that for the services rendered by the said physician and surgeon to the claimant, and for hospitalization, claimant incurred expenses in the sum of $ 600, $ 350 of which was for hospitalization." (Finding No. 7.)

"That the amputation of claimant's legs as above stated was not the result of his accident sustained by him on the 30th day of January, 1941, as above stated but was the result of thrombo angiitis obliterons, also known as Berger's disease, with which disease the claimant was...