Ramsay v. Sullivan Mining Co.
| Decision Date | 08 December 1931 |
| Docket Number | 5702 |
| Citation | 6 P.2d 856,51 Idaho 366 |
| Parties | ALLAN RAMSAY, Appellant, v. SULLIVAN MINING COMPANY, Respondent |
| Court | Idaho Supreme Court |
WORKMEN'S COMPENSATION LAW-CONSTRUCTION-INDUSTRIAL ACCIDENT BOARD-FINDINGS OF FACT-INDUSTRIAL ACCIDENT-LEAD POISONING.
1. Court reviewing hearing before accident board, upon question whether evidence submitted sustained board's findings will consider competency of evidence according to rules applicable to court trial.
2. Accident board's fact findings, when supported by sufficient, though conflicting competent evidence, are conclusive upon district and supreme courts.
3. District and supreme courts, on appeal from accident board are confined to reviewing law questions.
4. Sudden injury resulting from lead poisoning of lead burner held not "occupational disease," but compensable as "personal injury by accident arising out of and in course of employment" (C. S., sec. 6217, and sec. 6323 Laws 1927, chap. 106, sec. 20).
APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.
Proceeding under Workmen's Compensation Law. Appeal from judgment of District Court affirming order of Industrial Accident Board denying compensation. Reversed and remanded.
Reversed and remanded, with instructions. Costs awarded to appellant.
Elmer E. Johnston, for Appellant.
"The accidental and unforeseen inhaling by an employee, in the course of his employment, of a specific, volatile poison or gas, resulting in injury or death, is not an 'occupational disease." (Industrial Com. of Ohio v. Roth, 98 Ohio, St. 34, 6 A. L. R. 1463, 120 N.E. 172.)
"The expression of 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed." (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Victory Sparkler & Specialty Co. v. Franks, 147 Md. 368, 44 A. L. R. 363, 128 A. 635; Sullivan Min. Co. v. Aschenback, 33 F.2d 1.)
James E. Gyde and James E. Gyde, Jr., for Respondent.
There are numerous cases under statutes not specifying that the injury must be the result of an accident which also hold that an occupational disease is not compensable.
We desire first to call the court's attention to the following English case: Steel v. Cammell, Laird & Co., 2 K. B. (Eng.) 232, 2 Ann. Cas. 142.
The editors of this work have annotated this case and the court's attention is especially called to these annotations.
Among the American cases, probably the most comprehensive is that of Adams v. Acme White & Colour Works, 182 Mich. 157, Ann. Cas. 1916D, 689, 148 N.W. 485, L. R. A. 1916A, 283.
This appeal is taken from a judgment of the district court affirming an order of the Industrial Accident Board denying appellant's Claim for compensation against respondent on account of injuries sustained while in its employ resulting in total disability.
The material facts concerning the injuries sustained by appellant for which he seeks compensation, as disclosed by the testimony taken upon the hearing before the Industrial Accident Board are substantially as follows:
Appellant, a single man, forty-five years of age, had followed his occupation as carpenter for twenty years prior to September 27, 1927, when he entered the employ of respondent in that capacity at its zinc plaint at Kellogg. Except for an attack of typhoid fever about 1909 from which he fully recovered in a few months and except as hereinafter related, appellant has always enjoyed good health. In November, 1928, the construction of respondent's zinc plaint by contractors was practically completed and as respondent desired to have one of its own employees familiar with the process known as "lead burning" in order to make necessary repairs to the cells and tanks in said plant, appellant was selected for such work and was instructed and commenced work as a "lead burner" in the latter part of November, 1928. The cells referred to were about 4 1/2 feet deep, 7 feet long and 4 feet wide and the tanks were about 15 feet deep, cylindrical, and from 15 to 30 feet in diameter. These cells and taken were being lined with lead and it was the duty of the lead burner to weld the sheets of lead lining the sides thereof by melting the edges of the adjoining sheets by the use of an oxyhydrogen torch. The sheets of lead forming the bottom of the cells and tanks were welded together by means of an oxyhydrogen torch by melting strips of lead from 3/8" to 5/8" in diameter along the joints. In welding the bottom of the cells and tanks it is necessary for the lead burner to get his face quite close to the melting lead and torch to carefully watch the welding and to avoid melting holes in the sheets of lead being welded. No respirator or mask was furnished or used by the lead burners. Appellant testified that during welding operations the air in the cells and tanks became quite suffocating and that he had to get out of the tank in which he was working as many as six times a day to get fresh air, and that after he had been working as a lead burner for about three weeks he began to grow nervous and to experience pains in the lower bowels, became extremely constipated and had frequent belchings which continued until December 22, 1928. On that day appellant was engaged in welding the bottom of a tank and had been working in a stooping position for several hours. He then started to straighten up and immediately sank to the floor in a fainting condition and the next thing he knew someone was helping him to a standing position, and he was then assisted to and put into an automobile of respondent's and taken to Dr. Kennett at the Wardner Hospital accompanied only by the driver of the car. While appellant was being assisted from the tank to the automobile he informed the outside foreman that previous to that time he had had a similar attack and on that occasion had dropped and then sat down a few minutes and got up and went on. At the hospital Dr. Kennett talked to appellant not over two minutes, made no examination and told him he did not think it was very serious and for him to go back to the plant. When appellant arrived at the plant he was very dizzy, sick at his stomach and extremely nervous. At the suggestion of his foreman he went to Spokane to consult a doctor and stayed there for three days but did not see a doctor as he was afraid to cross the street on account of his physical condition. He then went to his home in Stevens county, Washington, remaining there but one day and then returned to Kellogg intending to go to work the following morning but the following morning he felt in worse condition than ever before. His foreman came to see him, advised him to go to the hospital and furnished an automobile and appellant was conveyed to the Wardner Hospital where he remained from about January 1, 1929, until April 15, 1929, where he was given an anti-syphilitic treatment. While in the hospital the pain in his bowelks and left foot and his nervousness continued and after being so treated fox six weeks his left arm, became affected and partially paralyzed. Appellant, was sent to the Deaconess Hospital in Spokane, Washington, during Easter week of 1929, and remained there for four days under observation and was examined and discharged without treatment. He then returned to a rooming-house in Kellogg and remained there until August 15, 1929. Evidence was also introduced showing his physical condition to be as found by the board and as hereinafter recited and showing expenditures for medical and hospital services.
Findings of fact substantially in accordance with the foregoing were made by the board, including the following:
From such findings the board concluded as a matter of law that appellant did not sustain a personal injury by accident arising out of and in the course of his employment with respondent, and entered...
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