Prouse v. Industrial Com'n of Colo.

• Decision Date: 06 December 1920
• Docket Number: 9680.
• Citation: 194 P. 625,69 Colo. 382
• Parties: PROUSE v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

194 P. 625

69 Colo. 382

PROUSE v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 9680.

Supreme Court of Colorado, En Banc.

December 6, 1920

Rehearing Denied Jan. 10, 1921.

Error to District Court, Boulder County; Neil F. Graham, Judge.

Proceedings under Workmen's Compensation Act by Pearl Prouse in behalf of herself and minor child, for compensation for death of her husband, George Prouse, opposed by the Rocky Mountain Fuel Company, employer, and the Employers' Mutual Insurance Company, insurer. Judgment of the Industrial Commission denying applicant's claim for compensation was affirmed by the District Court, and the applicant brings error.

Affirmed.

Scott J., and Garrigues, C.J., dissenting.

Rinn & Archibald, of Boulder, for plaintiff in error.

Victor E. Keyes, Atty. Gen., John S. Fine, Asst. Atty. Gen. (Walter E. Schwed, of Denver, of counsel), for Industrial Commission.

Hughes & Dorsey, W. M. Bond, Jr., and Robert L. Stearns, all of Denver, for defendants in error Rocky Mountain Fuel Co. and Employers' Mut. Ins. Co.

DENISON J.

The Industrial Commission denied the claim of the plaintiff in error, Pearl Prouse, for compensation for the death of her husband, and its judgment was affirmed by the district court.

It is claimed: First, that the commission did not make sufficient findings of fact as required by law; and, second, that the commission erroneously held that the death of the husband of plaintiff in error, George Prouse, was not caused by accident.

As to the first point, the finding of the commission was:

'That the burden of proof is upon the claimants herein. That the claimants have not established their claim by a preponderance of the evidence. That they have not established that the death of the said George Prouse, deceased, was caused by any accident arising out of and in the course of his employment while employed by the said the Rocky Mountain Fuel Company, and that they have failed to show any connection between his death and any alleged accident sustained by him while in the employ of the said the Rocky Mountain Fuel Company, and that therefore the claim of the said claimants should be denied.'

It is the duty of the commission to make sufficiently detailed findings of fact so that the courts can determine whether the order or award is supported by the facts. S. L. 1919, p. 743, § 103, and S. L. 1915, p. 558, § 81. This seems to be the rule in other jurisdictions. Gardner v. Horsehead's Construction Co., 171 A.D. 66, 156 N.Y.S. 899; Inland Steel Co. v. Lambert (Ind. App.) 118 N.E. 163; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 P. 398; Dodge v. Barstow Stove Co., 40 R.I. 191, 100 A. 245.

The findings of fact in this case are insufficient. They state merely a conclusion of law.

We have no right to review the case upon the evidence. S. L. 1915, p. 558, § 81. The evidence, however, in this case, is not conflicting, the facts are undisputed, and we think the commission's decision was right; therefore the case is not remanded for more detailed finding, but we consider the evidence as if it were the findings of fact.

George Prouse on the 15th day of December, 1917, was working with others in the Mitchell mine. They broke into an old, inclosed entry, whence came foul air and dioxide gas. Foul air and gas continued in the mine for some weeks, and until Prouse was compelled to stop work.

About January 1, 1918, his physician was called to see him, and told him that he was working too hard in bad air, and advised him to lay off. About the 12th or 15th of January the physician was called again, and found him suffering from headache, pain all over, sore throat, and high temperature. He later went back to work, however. Two or three days later the doctor found him much worse; he was taken to a hospital, and about the 17th of February died. The bacteriologist's test showed septicaemia. Dr. Braden, the physician who attended him, testified that, in his opinion, the immediate cause of death was septicaemia; that a contributing cause was his failure to show the average resistance, and that was 'the result of working in a poorly ventilated atmosphere. That is my opinion; that was what I had in mind when I advised him to lay off.' Dr. Reed, the bacteriologist who had charge of the patient at the hospital, gave his opinion that the direct cause was pyaemia (of a similar nature to septicaemia), and his opinion also was that the bad ventilation at the mine had rendered the patient susceptible to the infection, but there was no evidence as to when, where, or how the patient contracted it.

The statute (Session Laws 1915, p. 522, § 8) provides for compensation only 'where the injury is proximately caused by accident. * * *' The question is whether the death of George Prouse was proximately caused by an accident. There is no evidence that such is the case. The evidence is undisputed that the man died of infection by the germ of septicaemia or pyaemia. There is no evidence as to where he got that germ. There is no evidence that the sudden inhalation of gas and foul air from the old workings caused the disease, but the evidence is that the continued inhalation of foul air in the mine rendered the patient more susceptible or less resistant to the infection, and so contributed to the death.

There are several reasons why this is not within the terms of the statute above quoted: First. An accident, under the various Workmen's Compensation Acts, must be traceable to a definite time, place, and cause. Matthiessen, etc., Co. v. Industrial Board, 284 Ill. 378, 120 N.E. 249. The occurrence shown in the evidence is not traceable to a definite time. Second. The occurrence constituting an accident must be unexpected. 1 Corp. Jur. 39; Matthiessen v. Industrial Board, supra. In the present case it was not unexpected. Third. The occurrence must be the proximate cause of the death or of the disease which produced the death. This occurrence was not.

As to the first point: In the present case the time is indefinite. A continued working in had air for somewhere between two weeks and two months depleted the system, and rendered it susceptible to a disease or unable to resist a disease, the time, place, or manner of contracting which is not shown by the evidence, nor is anything shown from which it can be determined.

The case most nearly like the present is the Scotch Case (Kelly v. Coal Company, 48 Scottish Law Rep. 768), but there the 'accident' was 'one lethal dose' of carbon monoxide, generated by an explosion of gunpowder. The court lays stress upon the point that there was an unusual occurrence on a definite day from which the symptoms were immediately felt, and they cite Steele v. Cammell et al., [1905] 2 K. B., holding that----

'Injury from long-continued breathing of lead fumes was not accidental because it could not be traced to any particular day, but was the result of an accumulation of poisoning extending over a period of time.'

Broderick v. London County Council, 2 K. B. 807, is also cited upon the same point. The Scotch case, then, is an authority against and not for the claimant in this case. See, also, Alloa Coal Co. v. Drylie, 6 B. W. C. C. 398, Hurle v. Plymouth Cordage Co., 217 Mass. 223, 104 N.E. 336, L.R.A. 1916A, 279, Ann.Cas. 1915C, 919.

Upon the second point: An accident must be unexpected. Bad air, continued from day to day, is expected. The doctor expected it to continue and advised a lay-off. Prouse knew it was bad, knew it was continuing, or he could not have told the doctor about it. Prouse continued to labor in the gas-contaminated air for some weeks, growing constantly worse, so his doctor testified, because of the bad air. This is no accident. Every definition or attempted definition of accident includes the element of unexpectedness. 1 Corp. Jur. 390; Matthiessen v. Indus. Bd., 284 Ill. 378, 120 N.E. 249, 251; Kelly v. Coal Co., 48 Scottish Law Rep. 768; Broderick v. London County Council, etc., 2 K. B. 807; Steele v. Cammell, etc., [1905] 2 K. B. 232. The deleterious result was also expected; the doctor warned against it; so the deleterious result was not an accident.

As to the third point: Prouse did not die of the poisonous gas; he died of septicaemia or pyaemia, a disease caused by a definite infection by a germ, which has been isolated by the bacteriologists and classified. The only connection which the gas and bad air had with this disease, according to the undisputed testimony of the physicians, was that it depleted the patient's system and rendered him more susceptible or less resistant to it. They do not say that he would not have contracted the disease if he had not worked in the gas, or would not have died of it, nor do they express such opinions.

Bad air makes a man more susceptible to tuberculosis. Every clerk works part of the time in bad air. If he contracts tuberculosis no physician can deny that the bad air probably made him susceptible, and so was a contributing cause. If so, is he entitled to compensation? So of any other germ disease, e. g., typhoid fever, infant paralysis, meningitis, etc.

The decision in the case of the United Paperboard Co., 65 Ind.App. 356, 117 N.E. 276, seems to us extreme in itself, but the dicta of the court therein would seem to make the employer liable for every case of sickness of which the employment was the procuring cause, and we cannot follow it.

The Massachusetts cases have no bearing here, because the Massachusetts act does not use the word 'accident,' nor any derivative or equivalent. The word 'accidentally' and the words 'proximately caused by accident' in our act (Session Laws, p. 552, § 8) must be given some force.

The judgment of the district court is affirmed.

GARRIGUES C.J., dissents.

TELLER J....