Roe v. Boise Grocery Company, 5971

• Decision Date: 24 April 1933
• Docket Number: 5971
• Citation: 21 P.2d 910,53 Idaho 82
• Parties: DELLA F. ROE, Respondent, v. BOISE GROCERY COMPANY, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

21 P.2d 910

53 Idaho 82

DELLA F. ROE, Respondent, v. BOISE GROCERY COMPANY, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 5971

Supreme Court of Idaho

April 24, 1933

WORKMEN'S COMPENSATION ACT-COURSE OF EMPLOYMENT-EVIDENCE, SUFFICIENCY OF.

1. Salesman required to travel over highway through wood-tick territory being exposed to greater risk than ordinary travelers, bite from infected wood-tick while thus traveling would constitute accident "arising out of and in course of employment" (I. C. A., sec. 43-901 et seq.).

2. Industrial Accident Board's finding that bite by wood-ticks was risk incident to all who traveled in territory held not inconsistent with finding that wood-tick bit traveling salesman while performing his work, and that accident arose out of and in course of employment (I. C. A sec. 43-901 et seq.).

3. In civil case, facts need not be established beyond reasonable doubt.

4. In civil action, it is sufficient if evidence on whole supports hypothesis which it is produced to prove.

5. If accident to employee is one whose happening cannot be fixed as of specific date, it is sufficient to establish time with reasonable probability (I. C. A., sec. 43-901 et seq.).

6. Evidence supported finding that deceased traveling salesman was bitten by wood-tick while on regular trip into wood-tick infested territory (I. C. A., sec. 43-901 et seq.).

7. Accident to traveling salesman consisting of bite by wood-tick causing infection held shown with sufficient certainty to have occurred at time fixed by Industrial Accident Board (I. C. A., sec. 43-901 et seq.).

8. Industrial Accident Board's finding, while somewhat inconsistent, supported award on theory traveling salesman contracted fever causing death from bite of wood-tick arising in and out of course of employment (I. C. A., sec. 43-901 et seq.).

9. In compensation case, it is unnecessary to exclude possibility or even some probability that another cause may have caused damage, rather than cause alleged (I. C. A., sec. 43-901 et seq.).

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

Appeal by Boise Grocery Company, employer, and the State Insurance Fund, surety, from a decree affirming an award of the Industrial Accident Board in favor of claimant, Della F. Roe in a proceeding under the Workmen's Compensation Act to recover compensation for the death of claimant's husband. Affirmed.

Judgment affirmed, with costs to respondent.

J. J. McCue and Charles F. Reddoch, for Appellants.

The injury which the deceased received was common to the public who lived or traveled in the territory which he traversed. His employment subjected him to no greater risk than others living or traveling therein, and is therefore not compensable. (Cyc.-Corpus Juris Pamphlet, Workmen's Compensation, sec. 67, p. 77; Netherton v. Lightning Delivery Co., 32 Ariz. 350, 258 P. 306; Pattiani v. State Industrial Acc. Com., 199 Cal. 596, 250 P. 864, 49 A. L. R. 446; Consumer's Co. v. Industrial Commission, 324 Ill. 152, 154 N.E. 423, 53 A. L. R. 1079.)

The injury must be incidental to and flow from the employment as its direct and proximate cause. (Ocean Acc. & Guar. Corp. v. Industrial Commission, 32 Ariz. 265, 257 P. 641; Boorde v. Industrial Commission, 310 Ill. 62, 141 N.E. 399.)

An award of compensation cannot rest upon speculation, surmise or conjecture, but must be based on facts, or inferences deducible therefrom. (Clapp's Parking Station v. Industrial Acc. Com., 51 Cal.App. 624, 197 P. 369; Jolly v. Industrial Commission, 341 Ill. 46, 173 N.E. 131.)

Paris Martin, for Respondent.

It is not necessary in order that compensation may be awarded that the claimant be able to prove definitely the time the accident occurred. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Aldrich v. Dole, 43 Idaho 30, 249 P. 87; Sullivan Min. Co. v. Aschenbach, 33 F.2d 1.)

Rocky Mountain spotted fever, smallpox and other germ diseases may be accidents within the meaning of the Workmen's Compensation Act. (Reinoehl v. Hamacher Pole & Lumber Co., 51 Idaho 359, 6 P.2d 860; Vilter Mfg. Co. v. Jahncke, 192 Wis. 362, 212 N.W. 641, 57 A. L. R. 627.)

HOLDEN, J. Givens, Morgan and Wernette, JJ., and Sutphen, D. J., concur. Budge, C. J., did not sit.

OPINION

HOLDEN, J.

Charles A. Roe was a traveling salesman, employed by appellant Boise Grocery Company, being the husband of claimant, Della F. Roe, and lived at Boise, Idaho. He regularly traveled by automobile from Boise to Ontario, Vale, Drewsey, Beulah and intermediate points to Burns, Oregon, and from Boise to Mountain Home, Bruneau, Murphy and Jordan Valley. One week he covered what we will term the "Burns territory," and the next week the "Jordan Valley territory." He traveled both days and nights, seeing customers at hotels, stores and wherever it was most convenient to them, during the day and at nights. In the springtime of each year both the Burns territory and the Mountain Home territory were infested with wood-ticks infected with the virus which causes Rocky Mountain spotted fever. March 21, 1932, Roe left Boise for Ontario, Oregon, for the purpose of covering the Burns territory, and in the afternoon of March 22, 1932, while driving from Beulah to the town of Crane, Oregon, the Roe car got stuck in the mud. Another traveling salesman driving just ahead of Roe stopped and helped him. These salesmen spent the best part of the afternoon and until about 11 o'clock that night gathering rocks out in the sage-brush on either side of the road, and placing them under the wheels of the Roe car. About 11 o'clock they got into their respective cars and then slept the rest of the night. The next morning about 11 o'clock they got the Roe car out of the mud-hole, and Roe then continued on his way to Crane, and from Crane drove on to Burns. At Burns Roe examined himself to see if he had any wood-ticks, but did not find any. From Burns he visited the other towns in that territory returning home Saturday evening, March 26, 1932. About 10 o'clock the next (Sunday) morning, a wood-tick was found imbedded in his right leg, and at the point where the tick was imbedded in the leg there was inflammation and an appearance of infection. After the tick was removed Roe went to church, and in the afternoon took his daughter to Mountain Home, but did not get out of his car.

Monday morning, March 28, 1932, Roe left Boise, on a trip into the Jordan Valley territory, returned to Boise about the middle of the week, stayed overnight, and then drove to the towns of Bruneau, Murphy and Oreana. While in Bruneau he visited a daughter either on Wednesday, March 30th, or Thursday, March 31, 1932, and returned home in the evening, at which time it was found Roe had a "bite" over his left shoulder-blade. The next morning Roe left home on another trip returning to Boise Saturday night, April 2, 1932. Monday morning, April 4, 1932, Roe left home on another regular trip into the Burns territory, took sick at Ontario, Oregon, returned to Boise and entered a hospital April 5, 1932, at which time it was found he was suffering with Rocky Mountain spotted fever, and on the 16th of that month he died.

It appears from the record that the period of time usually elapsing between the time an infected wood-tick bites a patient and the time the fever manifests itself is from twenty-four hours to ten days, that period being known as the period of incubation.

This appeal is from a decree of the district court affirming an award of the Industrial Accident Board in favor of claimant, Della F. Roe, and against the Boise Grocery Company, employer, and the State Insurance Fund, surety.

We will review the errors specified by appellants in the order in which they are assigned.

That (a) Finding No. III, affirmed by the court, wherein the board found "that being bitten by, and infected by, ticks infected with said virus in all of the above-described territory, is a risk incident to all who live or travel in said territory in the spring time," is inconsistent with Finding No. VIII, wherein the board found, among other things, "that the greater probability is that the infected tick, from the bite of which the Rocky Mountain Spotted fever, of which he (deceased) died, developed, came in contact with his person or clothing and bit him during the time he was actually engaged in the performance of his work for his employer," and that the deceased "received a personal injury by accident arising out of and in the course of his employment with defendant Boise Grocery Company" in that Finding No. III holds and determines that the risk of being bitten by infected ticks in the territory in which deceased traveled was a risk common to the public at large; that (b) there is no finding or evidence showing that the deceased by reason of his employment was subjected to any greater or different hazard than that obtaining to the general public, for which reason no liability attached to the decedent's employer or its surety.

The evidence is uncontradicted and the board found that the deceased was a salesman; that he was employed by appellant ...