Smith v. Mchan Hardware Co.

• Decision Date: 08 July 1935
• Docket Number: 6170
• Citation: 48 P.2d 1102,56 Idaho 43
• Parties: EVA SMITH, Claimant and Respondent, v. MCHAN HARDWARE COMPANY, Employer, and STATE INSURANCE FUND, Surety, Defendants and Appellants and STATE OF IDAHO ex rel. HARRY C. PARSONS, State Auditor, Claimant and Cross-Appellant,
• Court: Idaho Supreme Court

48 P.2d 1102

56 Idaho 43

EVA SMITH, Claimant and Respondent, and STATE OF IDAHO ex rel. HARRY C. PARSONS, State Auditor, Claimant and Cross-Appellant, v. MCHAN HARDWARE COMPANY, Employer, and STATE INSURANCE FUND, Surety, Defendants and Appellants

No. 6170

Supreme Court of Idaho

July 8, 1935

WORKMEN'S COMPENSATION LAW - COMPENSABLE INJURY - INJURY BY ACCIDENT - TICK BITE-DEPENDENTS-EVIDENCE-NOTICE OF INJURY-KNOWLEDGE OF EMPLOYER-CLAIM FOR COMPENSATION, SERVICE OF - COMPUTATION OF WAGES - EVIDENCE - LIABILITY OF SURETY, WHERE NO CLAIM IS MADE AGAINST EMPLOYER.

1. Wood-tick bites inflicted on sheepherder resulting in death from Rocky Mountain spotted fever held compensable as "accident" under the Workmen's Compensation Law (I. C. A., secs. 43-1001, 43-1809, 43-1810).

2. In compensation proceeding where evidence of dependency of claimant was not conflicting, action of district court in applying law to undisputed evidence held proper.

3. Where deceased employee was compelled by lack of employment to live apart from wife who lived with her brother from whom she received support, but made small contributions to her support and in addition paid community debts contracted before separation, wife, who was without income or property held "dependent" within Compensation Law (I. C. A sec. 43-1102).

4. Evidence showed that employer had knowledge of sheepherder's injury from wood tick bites within time employee was required to give notice of injury (I. C. A sec. 43-1205).

5. Compensation claimant who had never served notice of deceased employee's injury nor claim for compensation could not re- cover from employer, irrespective of whether statute prescribing time limit for filing claim was mandatory, or whether it could be waived by failure to plead it (I. C. A., secs. 43-1202 to 43-1204).

6. Evidence held to show that deceased employee's widow had filed compensation claim with board and state insurance fund within time prescribed by statute so as to give district court jurisdiction to render judgment against such fund (I C. A., sec. 43-1202).

7. In compensation proceeding where there was complete absence of testimony to support findings of trial court as to decedent's average weekly earnings for year previous to death, judgment awarding compensation would be reversed and remanded for purpose of taking of such testimony (I. C. A., sec. 43-1118).

8. Provisions of Workmen's Compensation Law prescribing duties and liabilities of a surety become part of every surety bond, whether given by surety company or state insurance fund.

9. Obligation of surety under Workmen's Compensation Law becomes primary obligation to employee and authorizes employee to prosecute claim for compensation against such surety in same manner and with same force and effect as he can prosecute it against original employer, and for purposes of such action or proceeding surety becomes a coemployer (I. C. A., secs. 43-1605, 43-1806).

10. Claim for compensation held sustainable against surety notwithstanding no claim had been made against employer within statutory period of one year, since under Compensation Law insurer assumed obligations of an employer to his employees for accident compensation (I. C. A., secs. 43-1202, 43-1605, 43-1806).

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon. D. H. Sutphen, Judge.

Proceedings under the Workmen's Compensation Law by Eva Smith, claimant, against the McHan Hardware Company, employer, and the State Insurance Fund, insurance carrier, to recover compensation for the death of M. F. Smith, deceased employer. From that part of the decree of the district court in favor of claimant, the employer and insurance carrier have appealed, and from that part vacating the award made to the Industrial Administration Fund by the Industrial Accident Board, the State of Idaho has appealed.

Judgment reversed, with directions.

Judgment reversed with instructions. No costs awarded.

Leslie J. Aker, for Defendants and Appellants.

There was no "injury by accident" within the meaning of the statute; disability from disease resulting in death is not compensable. (Secs. 43-1809, 43-1810 and 43-1001, I. C. A.; Words & Phrases, vol. I, p. 64 et seq.; Vaughn v. Robertson & Thomas, 54 Idaho 138, 29 P.2d 756, 760; Jensma v. Benefit Assn., 1 F.Supp. 951; Dunnigan v. Shields, 52 Idaho 195, 12 P.2d 773; Wells v. Robinson Const. Co., 52 Idaho 562, 567, 16 P.2d 562.)

Neither the board nor the court had jurisdiction to hear or determine any claim for compensation because of failure to give notice of injury and/or serve claim for compensation on employer within the time required by statutes. (Secs. 43-1202, 43-1203 and 43-1204, I. C. A.; Wilson v. Standard Oil Co., 47 Idaho 208, 273 P. 758; Bodah v. Coeur d'Alene Mill Co., 44 Idaho 680, 258 P. 1079.)

There is no evidence establishing average weekly earnings of decedent for a year prior to the alleged injury; and the court had no basis for making any award. (Sec. 43-1118, I. C. A.; Feuling v. Farmers' Co-op. Ditch Co., 54 Idaho 326, 31 P.2d 683; Sugars v. Ohio Match Co., 53 Idaho 408, 23 P.2d 743; Flynn v. Carson, 42 Idaho 141, 243 P. 818.)

Bert H. Miller, Attorney General, and J. W. Taylor, Assistant, for Claimant and Cross-Appellant.

The findings and award of the Industrial Accident Board on conflicting evidence will not be disturbed on appeal where there is competent evidence to support the findings.

R. B. Scatterday and C. J. Schooler for Eva Smith, Claimant and Respondent.

Deceased, M. F. Smith, died as the result of a personal jury by accident arising out of and in the course of his employment with appellant, McHan Hardware Company. (Reinoehl v. Hamacher Pole & Lbr. Co., 51 Idaho 359, 6 P.2d 860; Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910.)

Respondent and deceased were living together within the meaning of the Workmen's Compensation Law at the time of the accident. (Northwestern Iron Co. v. Industrial Commission of Wisconsin, 154 Wis. 97, 142 N.W. 271, Ann. Cas. 1915B, 877, L. R. A. 1916A, 366, 370.)

Respondent was actually dependent upon deceased at the time of the accident within the meaning of the Workmen's Compensation Law. (Creasy v. Phoenix Utilities Co., 276 Pa. 583, 120 A. 659; Shimkus v. Philadelphia & Reading Coal & Iron Co., 280 Pa. 88, 124 A. 335; Woodward Iron Co. v. Jones, 217 Ala. 361, 116 So. 425.)

J. R. Smead, on Petition for Rehearing.

HOLDEN, J., AILSHIE, J. MORGAN, J. Givens, C. J., Budge, Morgan, Ailshie, JJ., and Holden, JJ., concurring.

OPINION

HOLDEN, J.

The claimant, Eva Smith, and the deceased, M. F. Smith, were married in 1904. In 1917, the Smiths moved to Canyon county, Idaho, where, in 1927, by foreclosure proceedings, they lost practically everything they had, to wit, an eighty-acre farm, livestock and other personal property. Having lost the family home, and being in destitute circumstances, the wife went to live with a brother in Portland, Oregon, and kept house for him without compensation, other than food and shelter. The deceased remained in Idaho, working at whatever he could find. April 23, 1931, about four years after the loss of the family home, the deceased was employed by appellant McHan Hardware Company as a sheepherder.

Appellant McHan Hardware Company was and is a co-partnership, composed of E. J. McHan and Vas McHan, brothers. It appears that the co-partnership operated a hardware store at Fairfield, Idaho, and that it was also engaged in "agricultural pursuits," as defined by section 43-904, I. C. A., to wit, the raising of sheep and other livestock near that town. July 15, 1930, appellant McHan Hardware Company, for the sake of brevity hereinafter called the "company," filed, in writing, an election that the Workmen's Compensation Law should apply to all employees employed by it in its business of raising sheep and other livestock, thus bringing the deceased within the protection of the statute.

The company owned and operated ranches, and conducted its livestock business, in a locality infested with sage ticks. The deceased was required to, and did, herd and care for the company's sheep constantly, day and night, until May 12, 1931, when he was taken sick, at which time he was taken to a hotel at Fairfield by E. J. McHan, where he was examined by Dr. W. B. Parkinson, and found to be suffering from Rocky Mountain spotted fever. Tick bites were found by Dr. Parkinson on the lower parts of Smith's legs, around his ankles, and one tick was found alive under the arm, and was removed. Smith died at the hotel May 21, 1931.

May 20, 1932, claim for compensation was filed by respondent, Eva Smith, widow, with the Industrial Accident Board. After a hearing, an order was entered by the Accident Board, disallowing her claim and denying compensation, on the ground that deceased left no dependents surviving, and thereupon, under the provisions of section 43-1101, I. C. A., made an award of $ 1,000 to the Industrial Administration Fund. On appeal, the district court set aside the award to the Industrial Administration Fund, and entered judgment in favor of respondent. From that part of the judgment, vacating the award to the Industrial Administration Fund, the State of Idaho has appealed, and from that part of the judgment in favor of respondent, the company and the State Insurance Fund, surety, have appealed to this court.

It is first contended by appellants that there was no "injury by accident," within the meaning of the statute (sections 43-1809, 43-1810 and 43-1001, I. C. A.), and that disability from disease, resulting in death, is not compensable.

There is no merit in that contention. The locality where the deceased was employed was infested with wood ticks. From the date of his...