Reinoehl v. Hamacher Pole & Lumber Co.

• Decision Date: 08 December 1931
• Docket Number: 5746
• Citation: 51 Idaho 359,6 P.2d 860
• Court: Idaho Supreme Court
• Parties: MRS. R. REINOEHL, Appellant, v. HAMACHER POLE & LUMBER COMPANY and STATE INSURANCE FUND, Respondents

6 P.2d 860

51 Idaho 359

MRS. R. REINOEHL, Appellant, v. HAMACHER POLE & LUMBER COMPANY and STATE INSURANCE FUND, Respondents

No. 5746

Supreme Court of Idaho

December 8, 1931

WORKMEN'S COMPENSATION LAW-CONSTRUCTION-INDUSTRIAL ACCIDENT-TICK BITE.

1. Tick bites resulting in Rocky Mountain spotted fever and death of lumber camp swamper held received "in course of employment," making death compensable (C. S., sec. 6217 sec. 6323, as amended by Laws 1927, chap. 106, sec. 20, and sec. 6324).

2. Lumber camp swamper's tick bites, from which Rocky Mountain spotted fever ensued and death resulted, held "accident," making death compensable (C. S., sec 6217, sec. 6323, as amended by Laws 1927, chap. 106, sec. 20 and sec. 6324).

3. That accidental injury results in disease does not alter nature or compensability of injury (C. S., sec. 6217, sec. 6323, as amended by Laws 1927, chap. 106, sec. 20, and sec. 6324).

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Appeal from judgment, affirming order of the Industrial Accident Board, denying workmen's compensation. Reversed and remanded, with direction.

Reversed and remanded, with directions. Costs to appellant.

Edward H. Berg and Williams & Cornelius, for Appellant.

The word "accident" as used in the Idaho Workmen's Compensation Act should be and is given a liberal construction so as to allow compensation if it may reasonably be done. (McNeil v. Panhandle Lbr. Co., 34 Idaho 773, 203 P. 1068; Flynn v. Carson, 42 Idaho 141, 243 P. 818; Aldrich v. Dole, 43 Idaho 30, 249 P. 87; In re Hillhouse's Estate, 46 Idaho 730, 271 P. 459.)

It is not necessary that the claimant be able to fix the exact time of the injury. (McNeil v. Panhandle Lbr. Co., supra; Aldrich v. Dole, supra; Sullivan Min. Co. v. Aschenbach, 33 F.2d 1.)

The test of whether an injury is unexpected and occurs by accident is, did the sufferer intend or expect that injury would on that particular occasion result from what he was doing? (Aldrich v. Dole, supra; Carroll v. Industrial Com., 69 Colo. 473, 195 P. 1097.)

Wm. M. Morgan, for Respondents.

The burden was on claimant to prove, to the satisfaction of the board, that the death of Pierce resulted from accident arising out of and in the course of his employment, and, since the proof, left it open to speculation and conjecture as to whether or not it did so arise, the evidence was insufficient to sustain an award in favor of claimant. ( Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Hawkins v. Bonner Co., 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992; Croy v. McFarland-Brown Lumber Co., ante, p. 32, 1 P.2d 189; Strouse v. Hercules Min. Co., ante, p. 7, 1 P.2d 203.)

VARIAN, J. Lee, C. J., and Budge, Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

James Edward Pierce was employed as a swamper, by the Hamacher Pole & Lumber Company, at a camp about four miles from Rathdrum, Idaho. He went to work on March 22, 1930, worked around the camp two or three days, and then went into the woods, where his working hours were from 8 A. M. to 5 P. M. Lunch was brought, at noon each day, to the workmen, by servants of the employer, and the employees ate such lunch in the woods, returning each night to the camp. Wood ticks were very plentiful on the brush in the woods and fell upon Pierce and his fellow employees. While working it was not always noticed when a tick fell on a man, or when it bit him. On return to the camp, in the evening, it was customary for the men to strip and pick the ticks off each other and burn them. The camp was located in a five-acre clearing free of brush and ticks. All the men boarded and roomed in the bunkhouse at the camp, and while they were free to come and go as they pleased, after working hours, none of them left the camp at night. The evidence shows that wood ticks do not stay at camps, but infest the brush. Pierce was in Spokane from about March 1, 1930, until he went to work on the 22d. On April 3, 1930, he complained of having a headache and chills, but refused to go to a doctor. He did not get better, but worked through until Saturday night, April 5th, when he was taken to Spokane, where he put up at the Fernwood Hotel. A brother, staying at the Galax Hotel, called on him but was unable to procure a physician on Sunday. On Monday, April 7th, Pierce was taken, by his brother, to St. Luke's Hospital, where he died, of Rocky Mountain spotted fever, on the morning of April 9, 1930. The doctor testified that he had many insect bites; which were reported by those having the care of the patient before he entered the hospital, as tick bites; that they conformed in every way to those produced by ticks; and that his opinion was that they were tick bites.

The Industrial Accident Board found the facts substantially as stated; that Pierce died of Rocky Mountain spotted fever; "that said spotted fever was the result of a tick bite or bites"; and that his death was not "the result of a personal injury by accident arising out of and in the course of his employment." On appeal, without any further testimony being taken, the district court found, in addition to the board findings, "That said spotted fever was the result of a tick bite or bites received by said James Edward Pierce in the course of his employment, and while employed as a 'swamper," as set forth in paragraph 3 of the findings." The district court further found:

"(7) That there remains but one other question, and that is whether a tick-bite can be termed an accident. Taking the ordinary meaning of the word 'accident, ' we are unable to find that a 'tick-bite' is an accident."

The district court entered judgment, sustaining the board's order, dismissing the proceeding; from which judgment claimant appeals to this court.

Two questions are presented by this appeal: (1) "Is there sufficient evidence to justify the finding of the district judge that tick-bite or bites were 'received by said James Edward Pierce in the course of his employment, and while employed as a "swamper," as set forth in paragraph 3 of the findings,' and, if the evidence is sufficient in that particular," (2) is a tick bite, from which Rocky Mountain spotted fever ensues, an "accident" within the meaning of the Workmen's Compensation Act?

Under the facts disclosed by this record we think the finding that Pierce's injury occurred in the course of his employment was justified.

The second question is one of first impression in this court and we have been cited to no report, of any appellate court, nor have we been able to find any case, involving tick bite and resulting Rocky Mountain spotted fever. However, the Idaho Industrial Accident Board, on stipulated facts, held that an employee who was incapacitated, for a period, by Rocky Mountain spotted fever, following a sage-tick bite, was not "injured by accident" within the purview of our statute, and denied compensation. (Smith v. Robertson, 3 Rep. Idaho I. A. B. 224.)

The following code sections are applicable to the matter under consideration:

"6217. If a workman receives personal injury by accident arising out of and in the course of any employment covered by this chapter his employer or the surety shall pay compensation in the amounts and to the person or persons hereinafter specified."

"6323. (As amended, Sess. Laws 1927, Chap. 106, sec. 20, p. 148.) 'Injury' or 'personal injury' includes death resulting from injury within two years after the accident but 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."

"6324. The words 'personal injury by accident arising out of and in the course of such employment' shall include an injury caused by the wilful act of a third person directed against an employee because of his employment. They shall not include a disease except as it shall result from the injury."

In construing C. S., sec. 6323, as amended, supra, it was held that the amendment of 1927 is not "to be construed as denying compensation in all cases where a workman sustains an injury that is not preceded by slipping or falling or some like violent happening." (In re Larson, 48 Idaho 136, 142, 279 P. 1087.) This interpretation is in accord with the uniform holding of this court to the effect that the Workmen's Compensation Act is to be liberally construed and in such a manner "as to carry out its purposes and, so far as is reasonably possible, secure its benefits to all those who were intended to receive them." (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 787, 203 P. 1068; Flynn v. Carson, 42 Idaho 141, 243 P. 818; Aldrich v. Dole, 43 Idaho 30, 249 P. 87; In re Hillhouse, 46 Idaho 730, 271 P. 459; In re Larson, supra; Ramsay v. Sullivan Min. Co., post, p. 366, 6 P.2d 856, decided December 8, 1931.)

In McNeil v. Panhandle Lumber Co., supra, the following definition of "accident" by Lord Macnaghten, in Fenton v. Thorley, (1903) App. Cas. 443, 72 L.J.K.B. 787, 89 L.T.R. 314, 52 Week Rep. 81, 19 T. L. R. 684, 5 W. C. C. 1, H. L., is laid down with approval:

". . . . that the expression '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."

The court has approved the quoted...