Riley v. Boise City, 6070

• Decision Date: 11 April 1934
• Docket Number: 6070
• Citation: 54 Idaho 335,31 P.2d 968
• Parties: WESTON T. RILEY, Respondent, v. BOISE CITY, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

31 P.2d 968

54 Idaho 335

WESTON T. RILEY, Respondent, v. BOISE CITY, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 6070

Supreme Court of Idaho

April 11, 1934

WORKMEN'S COMPENSATION ACT - ACCIDENT - TIME-EVIDENCE-COMPENSABLE INJURY-ARISING OUT OF AND IN COURSE OF EMPLOYMENT.

1. It is sufficient to establish time of accident in workman's compensation proceeding with reasonable probability, if specific date thereof cannot be fixed (I. C. A., sec. 43-901 et seq.).

2. Facts need not be established beyond reasonable doubt in civil action; it being sufficient if evidence on whole supports hypothesis it is produced to prove.

3. Possibility, or even probability, of another cause for damage than plaintiff alleges, does not defeat recovery, where plaintiff presents sufficient facts to justify reasonable juror in concluding that thing charged was prime and moving cause.

4. Evidence in proceeding for compensation under Workmen's Compensation Act held sufficient to support court's finding that claimant's injury resulted from freezing foot during tour of duty as city police patrolman (I. C. A sec. 43-901 et seq.).

5. Injury by freezing is "accidental injury" within Workmen's Compensation Act (I. C. A., sec. 43-901 et seq.).

6. Unexpected injury, sustained because of elements by employee whose duties expose him to special or peculiar danger therefrom, constitutes "accident arising out of and in the course of his employment" (I. C. A., sec. 43-901 et seq.).

7. Evidence held to justify court's finding that city police patrolman's exposure to elements was special, peculiar danger, greater than that of ordinary persons, so that freezing of his foot while on duty constituted "accident arising out of and in the course of his employment" (I C. A., sec. 43-901 et seq.).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Proceedings under Workmen's Compensation Act. Appeal from judgment of district court reversing decision of Industrial Accident Board in favor of appellants. Affirmed.

Affirmed.

Thos. J. Jones, Jr., for Appellants.

"The word 'accident' has been defined by this Court as it is employed in its ordinary sense, as meaning 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; Aldrich v. Dole, 43 Idaho 30, 249 P. 87; Re Larson, 48 Idaho 136, 279 P. 1087.)

"Each case must be determined largely upon its particular facts and law as applied thereto, and no hard and fast rule can be laid down as controlling it. . . . claimant must go further and must say that the accident arose because of something he was doing in the course of his employment and because he was exposed by the nature of his employment to some particular danger." (Walker v. Hyde, 43 Idaho 625, at 632, 253 P. 1104; Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515.)

William A. Johnston, for Respondent.

The word "accident," as used in the workmen's compensation laws, is to be understood in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected nor designed. (In re Larson, 48 Idaho 136, 279 P. 1087; Aldrich v. Dole, 43 Idaho 30, 249 P. 87; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 781, 203 P. 1068.)

Injury by freezing, as an event or mishap which was unlooked for or untoward and not expected nor designed, is an accident within the meaning of the workmen's compensation laws. (Yellow Cab Co. v. Industrial Com., 210 Wis. 460, 246 N.W. 689; Quick v. Fred E. Illston Ice Co., 195 A.D. 676, 186 N.Y.S. 690; McManaman's Case, 224 Mass. 554, 113 N.E. 287.)

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

OPINION

BUDGE, C. J.

From a judgment of the district court reversing an award of the Industrial Accident Board in favor of the employer, Boise City, and the surety, State Insurance Fund, and directing an award in favor of the claimant, this appeal is prosecuted. The claimant sought compensation because of disability for work resulting from frost-bite of a portion of his left foot. Briefly, the record discloses that on December 11, 1932, claimant as a patrolman on the Boise City police force patrolled "Beat No. 2" between the hours of 8 A. M. and 4 P. M. During the day the temperature gradually arose from four below zero at 8 A. M. to eleven above at 3 P. M. and then decreased to eight above at 4 P. M. Claimant's longest period of exposure was the last hour of his tour of duty, during which time he walked continuously for a distance of about twenty blocks turning on alley lights. Claimant then went directly home, riding a bus for about fifteen minutes and then walking an additional five minutes, arriving home about 4:20. Upon removal of his shoes and stockings immediately after arriving at his home he discovered that his left foot was frozen. Two traffic policemen and one other patrolman on duty on December 11, 1932, suffered no frost-bite. The findings of fact and rulings of law of the Industrial Accident Board were in part as follows:

"That as a result of the frost bite to his toe, the claimant has been totally disabled for work since the 11th day of December, 1932, and is now so totally disabled for work. . . .

"That the claimant's disability for work is not the result of a personal injury by accident arising out of and in the course of his employment with the defendant, City of Boise."

The district court on appeal ordered "that such further evidence as may be necessary be taken by the board in order to determine the amount of said award . . . . that the board modify and amend its findings . . . . in conformance to the court's findings."

Appellants' first specification of error is to the effect that the evidence is insufficient to justify a finding that the claimant received an accidental injury while in the course of his employment. It is contended that the evidence was not such as to leave no room for a possibility that the frost-bite was sustained at some time other than when claimant was on duty, and is exemplified by the language of appellants' brief reciting: "The said claimant and respondent herein could have frozen his foot as well off duty as on duty." The applicable rule in cases under the Workmen's Compensation Act is stated in Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910, and McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068, as follows:

"In case of claims under the Workmen's Compensation Law, if the accident is one whose happening cannot be fixed as of a specific date it is sufficient to establish such time with reasonable certainty."

In a civil case, facts need not be established beyond a reasonable doubt. In a civil action, it is sufficient if the evidence on the whole supports the hypothesis which it is produced to prove. (Roe v. Boise City Grocery Co., supra; McNeil v. Panhandle Lumber Co., supra.)

"There are very few things in human affairs, and especially in litigation involving damages, that can be established to such an absolute certainty as to exclude the possibility, or even some probability, that another cause or reason may have been the true cause or reason for the damage rather than the one alleged by the plaintiff. But such possibility, or even probability, is not to be allowed to defeat the right of recovery, where the plaintiff has presented to the jury sufficient facts and circumstances surrounding the occurrence as to justify a reasonable juror in concluding that the thing charged was the prime and moving cause." (Adams v. Bunker Hill etc. Min. Co., (on rehearing), 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844.)

The law does not anticipate or attempt to exclude mere possibilities. Claimant testified that when he went home there was no feeling in his foot and he first discovered that his foot was frozen some twenty minutes after relief from duty. It would hardly seem logical to contend that claimant froze his foot at some other time and place than while on his beat in view of the uncontradicted evidence as above stated and in view of the further fact that we think it may be conceded that a portion of claimant's foot was actually frozen. We are of the opinion that there was sufficient competent evidence to support the court's findings that claimant's injury resulted from the freezing of claimant's foot during the tour of duty.

Appellants' second assignment of error is that the district court erred in ruling as a matter of law that the claimant received any compensable injury. In other words, whether...