Reader v. Milwaukee Lumber Co.

• Decision Date: 22 March 1929
• Docket Number: 5216
• Citation: 47 Idaho 380,275 P. 1114
• Parties: KATE READER, Respondent, v. MILWAUKEE LUMBER COMPANY, a Corporation, Employer, and HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, Surety, Appellants
• Court: Idaho Supreme Court

275 P. 1114

47 Idaho 380

KATE READER, Respondent, v. MILWAUKEE LUMBER COMPANY, a Corporation, Employer, and HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, Surety, Appellants

No. 5216

Supreme Court of Idaho

March 22, 1929

WORKMEN'S COMPENSATION LAW-INDUSTRIAL ACCIDENT BOARD-FINDINGS OF FACT-CONCLUSIVENESS-PERSONAL INJURY BY ACCIDENT-ADMISSION OF PRIVILEGED TESTIMONY-WHEN HARMLESS.

1. In proceedings under Workmen's Compensation Law (C. S., sec 6213 et seq.), findings of fact made by Industrial Accident Board based on substantial competent evidence are conclusive on district court, and jurisdiction of district court is limited to review of questions of law.

2. District court on appeal in workmen's compensation proceeding may determine if findings of Industrial Accident Board are supported by competent evidence, and if, as matter of law, findings are not so supported, must set them aside.

3. In proceedings under Workmen's Compensation Law (C. S., sec 6213 et seq.) for compensation for death of employee through attack of cedar poisoning, involving issue as to whether attack of cedar poisoning was accident within such law evidence held to sustain findings of Industrial Accident Board that employee had idiosyncrasy toward cedar poisoning and that whenever he came in contact with cedar or worked in and around cedar camp he would develop an attack thereof.

4. Where employee knew that he was susceptible to cedar poisoning on coming into contact with cedar, attack of cedar poisoning was not personal injury by "accident" within Workmen's Compensation Law (C. S., sec. 6213 et seq.).

5. In Workmen's Compensation proceeding, physician's testimony, admitted over objection that it was privileged, held harmless, in view of other evidence sustaining Industrial Accident Board's finding.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. W. F. McNaughton, Judge.

Appeal from a judgment which reversed a decision of the Industrial Accident Board denying compensation under Workmen's Compensation Law. Reversed.

Reversed.

J. Ward Arney, for Appellants.

Injury; Accident: "Injury" or "personal injury" is not to be construed as being synonymous with accident. An "injury" or "personal injury" to be compensable must be the result of an accident. (C. S., sec. 6323.)

Personal injury by accident: "The words 'personal injury by accident arising out of and in the course of employment' . . . . shall not include a disease, except as it shall result from the injury." (C. S., sec. 6324.)

Prior injuries: "The provisions of this chapter shall not apply to injuries sustained or accidents which occurred prior to the taking effect hereof." (C. S., sec. 6323.)

"Accident" under the Idaho act is used in the popular and ordinary sense of the word as denoting an unlooked for, unexpected or untoward event, neither expected nor designed. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068.)

"It is well settled that the burden rests upon one claiming compensation to show by competent testimony, direct or circumstantial, not only the fact of the injury, but 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. 1105.)

Chemical poisoning, received in the manufacture of fibre tubes, resulting in a gradual and cumulative, but imperceptible attrition of the tissues, causing blindness in one and impaired vision in the other eye, is not compensable:

". . . . the only diseases which are compensable under our (Delaware) Act are diseases which arise from or can be referred to an antecedent violence or application of force . . . . to the physical structure of the body. Traumatic diseases may be compensable under the Act--idiopathic diseases, those which exist of and by themselves and which are not referable to any violence . . . . are not compensable. . . ."

"This construction . . . . is made doubly sure by the provision that it must be 'sustained by accident.' . . ."

"There is involved in the proper idea of accident the element of suddenness or unexpectedness. "

"We have found no dissent from the basic principle that where an injury is only made compensable . . . . when it is sustained by accident that it is only embraced . . . . when it is or may be referable to a definite time, place or circumstance." (Hendrickson v. Continental Fibre Co. (Del.), 136 A. 375.)

Wm. D. Keeton, for Respondent.

That the deceased, Reader, died from an accident within the meaning of the Workmen's Compensation Act, we cite to the court the following cases: McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Winona Oil Co. v. Smithson, 87 Okla. 226, 209 P. 398; 1 Cyc. 249; Carroll v. Industrial Com. of Colo., 69 Colo. 473, 19 A. L. R. 107, 195 P. 1097; Fidelity Casualty Co. of N.Y. v. Industrial Acc. Com., 177 Cal. 614, 171 P. 429, L. R. A. 1918F, 856; Ward v. Beatrice Creamery Co., 104 Okla. 91, 230 P. 872; Beck Mining Co. v. State Industrial Commission, 88 Okla. 24, 28 A. L. R. 197, 211 P. 69; La Veck v. Parke-Davis & Co., 190 Mich. 604, 157 N.W. 72, L. R. A. 1916D, 1277.

WM. E. LEE, J. Varian, J., and Hartson, D. J., concur. Budge, C. J., and Givens, J., dissent.

OPINION

WM. E. LEE, J.

The widow of John Reader, for herself and two minor children, seeks compensation for the death of her husband, who had been employed by the Milwaukee Lumber Company. The accident board denied compensation. The district court reversed the action of the board, and made and entered its judgment for the payment of compensation.

The board found that deceased "had an idiosyncrasy toward 'cedar poisoning' and whenever he came in contact with cedar lumber or worked in and around where cedar lumber was being manufactured he would develop an attack of dermatitis. . . ." The court found that "paragraph five of the industrial accident board's findings is not supported by the evidence in so far as said paragraph finds that the decedent, John Reader, had an idiosyncrasy toward cedar poisoning and that whenever he came in contact with cedar or worked in or around cedar lumber he would develop an attack of dermatitis. . . ."

On an appeal in such a case, the findings of fact made by the Industrial Accident Board, based on substantial competent evidence, are conclusive on the district court (Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227) and the jurisdiction of the district court is limited to a review of questions of law (Ybaibarriaga v. Farmer, supra). It may determine if the findings of the board are supported by competent evidence; and, if, as a matter of law, the findings are not so supported, clearly it is the duty of the court to set them aside. But where the evidence is conflicting and the findings of the board are supported by the evidence, the province of the...