Stevens v. Village of Driggs

• Decision Date: 01 November 1944
• Docket Number: 7177
• Citation: 65 Idaho 733,152 P.2d 891
• Parties: S. A. STEVENS, Appellant, v. VILLAGE OF DRIGGS and STATE INSURANCE FUND, Respondents
• Court: Idaho Supreme Court

152 P.2d 891

65 Idaho 733

S. A. STEVENS, Appellant, v. VILLAGE OF DRIGGS and STATE INSURANCE FUND, Respondents

No. 7177

Supreme Court of Idaho

November 1, 1944

Appeal from the Industrial Accident Board.

Affirmed.

Ralph L. Albaugh and Errol H. Hillman, for appellant.

If an employee, by reason of his duties, is exposed to a special or peculiar danger from the elements, -- that is, one greater than other persons in the community, -- and an unexpected injury is sustained by reason of the elements, the injury constitutes an "accident" arising out of, and in the course of the employment, within the meaning of the Workmen's Compensation Act. (Riley v. Boise City, 54 Ida. 335, 340-2; Stilwell v Aberdeen-Springfield Co., 61 Ida. 357, 361; Larke v John Hancock Mut. L. Ins. Co., (Conn.), 97 A. 320, 322; Yellow Cab Co. v. Ind. Comm., (Wis.), 246 N.W. 689 690.)

Frank L. Benson and Paul C. Keeton, for respondents.

In order to recover in a compensation case for a disease, the claimant must prove (1) that the diseased condition was caused by an accident and (2) that the accident arose out of and in the course of his employment. (Sec. 43-1001, I. C. A. as amended by C. 161 of the 1939 S. L.; Sec. 43-1809, I. C. A.; Wade v. Pacific Coast Elevator Co., (Ida.) 129 P.2d 894.)

An infectious disease of the lungs resulting or alleged to have resulted from exposure to cold (or hot) air is not compensable. (Sonson v. Arbogast, 60 Ida. 582, 94 P.2d 672; Lacey v. Washburn & Williams Co., 309 Pa. 574, 164 A. 724, 726; Lanphier v. Air Preheater Corp., 278 N.Y. 403, 16 N.E.2d 382; Hoag v. Kansas Ind. Laundry Co., 113 Kan. 513, 215 P. 295.)

Givens, J. Holden, C. J., and Ailshie and Dunlap, JJ., concur. Budge, J., dissenting.

OPINION

Givens, J.

Appellant was employed as marshal, water master, and fire chief of the Village of Driggs. About one o'clock the morning of January 8, 1943, appellant was called to a fire. He jumped out of bed, dressed, and ran three and one-half blocks to the fire station, the temperature at that time being four degrees below zero, and drove an open fire truck seven blocks to the fire. The firemen had difficulty in extinguishing the fire, and appellant worked as hard and fast as he could for approximately three hours. Appellant had not been suffering from any cold or bronchial trouble or lung disorder. His lungs started hurting him while he was running to the fire house, and he testified the smoke had a tendency to strangle him and make him cough. When he returned home he was coughing and miserable and cold. He went to bed and stayed at home for two or three days, during which time his entire chest hurt and he "coughed and felt like he had a terrible cold and headache." Four or five days after the fire, during a blizzard appellant worked with a dozer and cat trying to help keep the roads open. A few days later appellant consulted a doctor and obtained some medicine. His condition became worse, and he was found to be suffering from pleurisy, occasioning confinement in a hospital for 26 or 27 days. At the time of the hearing appellant was still having difficulty breathing and was coughing all the time.

The Industrial Accident Board found appellant's pleurisy was caused by exposure to the cold in going to and working at the fire and continued exposure afterward while working at keeping open the roads, and further that being exposed to cold in the Village of Driggs is not an unexpected, undesigned, and unlooked for mishap, or untoward event, happening suddenly, and that claimant's disease did not result directly from any personal injury caused by an accident, and denied compensation, hence the appeal from the board's order.

Appellant contends the exposure to the elements, the suddenness of the onslaught of the disease, and requisite exposure over and above that to which the general public was subject, constitute an accident, urging that overexertion is comparable to a blow. If this be true, then any disease contracted by a workman during the course of his employment and occasioned or contributed to by conditions of his employment without any accidental feature whatever other than the unusualness of the occurrence would be sufficient to justify compensation.

Sonson v. Arbogast, 60 Ida. 582, 94 P.2d 672, held that pneumonia caused by a dairy employee's going back and forth between a cold, artificially refrigerated room and a hot room was not caused by accident, the court through Justice Ailshie saying:

"Under such circumstances, to say there was an accident would be to distort all definitions of the word and do violence to the common understanding of the language used by the legislature in writing sec. 43-1809, I. C. A." ^[1] [p. 585]

Likewise, Hoffman v. Consumers Water Co., 61 Ida. 226, 99 P.2d 919, following and reaffirming the doctrine of Sonson v. Arbogast, supra, held that typhoid fever contracted by a workman while cleaning out a ditch did not constitute an accidental injury. The exposure here was to natural cold rather than artificial cold as in Sonson v. Arbogast, supra, and there are no more unusual or unexpected elements herein identifying the situation as an accident than in Hoffman v. Consumers Water Co. As indicated in Sonson v. Arbogast, supra, the line of demarcation, while not easy to draw or always a straight line, nevertheless must exist and persist.

The following cases, under somewhat similar circumstances, held the employee had not suffered an accident: Lerner v. Rump Bros., 241 N.Y. 153, 149 N.E. 334, 41 A. L. R. 1122; Ferris v. City of Eastport, 123 Me. 193, 122 A. 410; Costly v. City of Eveleth, 173 Minn. 564, 218 N.W. 126; Allith-Prouty Co. v. Industrial Commission, 352 Ill. 78, 185 N.E. 267; Micale v. Light, 105 Pa. Super. 399, 161 A. 600; Osterritter v. Moore-Flesher Hauling Co., 150 Pa. Super. 236, 27 A.2d 262; D'Oliveri v. Austin, Nichols & Co., 211 A.D. 295, 207 N. Y. S. 699; Lux v. Western Casualty Co., 107 F.2d 1002; Biglin v. Pennsylvania Department of Labor and Industry, 133 Pa. Super. 221, 2 A.2d 514; Parks v. Miller Printing Mach. Co., 336 Pa. 455, 9 A.2d 742; Lanphier v. Air Preheater Corporation, 278 N.Y. 403, 16 N.E.2d 382; Maryland Casualty Co. v. Clark, Texas, 140 S.W.2d 890; Gibson v. Frank Kuhn Co., 105 Pa. Super. 264, 161 A. 456; Lacey v. Washburn & Williams Co., 309 Pa. 574, 164 A. 724; Landers v. City of Muskegon, 196 Mich. 750, 163 N.W. 43; Peck v. Dugal G. Campbell, Inc., 297 N. Y. S. 670; Lang v. Gage County Electric Co., 133 Neb. 388, 275 N.W. 462; Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844; Linnane v. Aetna Brewing Co., 91 Conn. 158, 99 A. 507; Carter v. Priebe & Sons, Mo., 77 S.W.2d 171; Paxton v. Spicer Mfg. Corp., 45 Ohio App. 359, 187 N.E. 193; Deardorff v. City of East Chicago, Ind., 50 N.E.2d 926; Newkirk v. Golden Cycle Mining & Reducing Co., 79 Colo. 298, 244 P. 1019; Cardwell Mfg. Co. v. Thomas, 192 Okla. 143, 134 P.2d 562; Hoag v. Kansas Independent Laundry, 113 Kan. 513, 215 P. 295.

Cases which might be considered to be contrary, some of which are however distinguishable as noted, are likewise to be found. Jones v. Philadelphia & Reading Coal & Iron Co., 285 Pa. 317, 132 A. 122; Dondeneau v. State Industrial Accident Commission of Oregon, 119 Ore. 357, 249 P. 820; Warner v. Industrial Accident Commission, 10 Cal.App. (2d) 375, 51 P.2d 897; Joyce v. Luse-Stevenson, 346 Mo. 58, 139 S.W.2d 918; Suren v. Sunshine Mining Co., 58 Ida. 101, 70 P.2d 399; Rinehart v. F. M. Stamper Co., 227 Mo.App. 653, 55 S.W.2d 729; Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288; Karp v. West 21st Street Holding Corp., 253 A.D. 851, 1 N. Y. S. (2d) 399; Broch v. Lehigh Valley Coal Co., 296 Pa. 502, 146 A. 899; Sjoholm v. Hercules Powder Co., 227 Mich. 610, 199 N.W. 603; Roth v. Locust Mountain State Hospital, 130 Pa. Super. 1, 196 A. 924; A. Breslauer Co. v. Ind. Comm. of Wis., 167 Wis. 202, 167 N.W. 256; In re McPhee, 222 Mass. 1, 109 N.E. 633; King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3; Travelers' Ins. Co. v. Smith, Texas, 266 S.W. 574; Heisler v. Lincoln Realty Co., 121 Pa. Super. 516, 184 A. 305.

Industrial Commission of Colorado v. Swanson, 93 Colo. 354, 26 P.2d 107, while apparently sustaining respondent, is weakened, if not abrogated, on the point involved herein by Olson v. Erickson, 105 Colo. 489, 99 P.2d 199, which without even percursory analysis did not follow it.

It will be noted that Yellow Cab Co. v. Industrial Commission, 210 Wis. 460, 246 N.W. 689, was decided under a statute amended to include "any disability sustained" by an employee, retaining "no such limitation as may be deemed implied by the use in the former provisions of such words as 'injuries,' 'personal injury,' 'accidentally sustained,' * *."

The legislature by enacting the occupational disease statute in 1939 (Chap. 161, 1939 Sess. Laws, p. 286) has clearly indicated that a distinction is to be made between non-occupational diseases not occasioned by an injury arising out of an accident, and injuries arising out of an accidental injury producing a disease, the claimed basis for compensation. The situation here is of the former character.

The order is affirmed.

Holden, C. J., and Ailshie and Dunlap, JJ., concur.

DISSENT BY: BUDGE

BUDGE J., dissenting.

The statement of facts in the majority opinion is substantially correct.

Appellant prior to his injury, was entirely free from cold, bronchial trouble, or lung disorder and we can therefore say, with confidence, that prior to the morning of January 8, 1943, when appellant was called to a fire which, as fire chief, it was his imperative duty to respond, he was free from illness of any kind. He jumped out of bed, dressed, and ran three and one-half blocks to the fire station, the...