Sullivan Mining Co. v. Aschenbach

• Decision Date: 15 July 1929
• Docket Number: No. 5766.,5766.
• Citation: 33 F.2d 1
• Parties: SULLIVAN MINING CO. v. ASCHENBACH.
• Court: U.S. Court of Appeals — Ninth Circuit

33 F.2d 1 (1929)

SULLIVAN MINING CO. v. ASCHENBACH.

No. 5766.

Circuit Court of Appeals, Ninth Circuit.

June 10, 1929.

Rehearing Denied July 15, 1929.

James E. Gyde, of Wallace, Idaho, and Post & Russell, of Spokane, Wash., for appellant.

David Herman and Williams & Cornelius, all of Spokane, Wash., for appellee.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

The sole question for decision is of the meaning of the term "accident" as it is used in the Workmen's Compensation Law of Idaho (Idaho Compiled Statutes 1919, § 6213 et seq.). If under any reasonable view of the evidence the injury for which plaintiff below (appellee here) sued and recovered was not "accidental" within such statutory meaning, appellant concedes the judgment should be affirmed; otherwise it should be reversed and the action dismissed on the ground that the courts are without jurisdiction of the subject-matter.

Plaintiff's injury was incurred while he was working for appellant as a painter, from January 13 to January 20, 1928. His job was to do the inside painting upon a new zinc smelter appellant was constructing near Kellogg, Idaho. For the work appellant furnished him with a certain brand of paint and a thinner, with instructions to mix them half and half; and this he did. From the first day he had a headache which grew increasingly distressing, and gradually he lost his appetite and his ability to sleep. Shortly after he quit work on the 20th, he became very sick and irrational and was taken to the hospital. It turns out that the thinner, the nature of which at the time was unknown to him, was carbon disulphide, a volatile substance giving off a poisonous gas. He was an experienced painter and assumed that his headaches and other physical discomfort were due to usual paint fumes not as a rule highly or permanently injurious, but more than ordinarily active in the present case, so he thought, because the work was being done in a warm, closed room. The gas from the thinner was extremely poisonous, appellee was ignorant of its character, and appellant failed to warn him, and as a consequence he suffered a serious impairment of his health. If the injury resulted from an "accident," it was compensable under the provisions of the Compensation Act; otherwise it was cognizable in courts of law.

Section 6217 of the act provides that, "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," etc. The act itself attempts no comprehensive definition of the words "accident" or "accidental." By section 6324 it is declared that such injury does "not include a disease except as it shall result from the injury," and by section 6323 as amended in 1927 (1927 Sess. L. p. 148), that, "An `injury' or `personal injury' to be compensable must be the result of an accident." By the Supreme Court of the state, however, the term has been construed, and, under familiar principles, by that construction we are bound. In McNeil v. Panhandle Lbr. Co., 34 Idaho, 773, 786, 203 P. 1068, 1073, the court said the act "is to be liberally construed with a view to effect its object and promote justice. * * * This does not mean that the courts should endeavor by construction to extend its provisions to persons not intended to be included by it, but that it shall be so construed as to carry out its purposes and, as far as is reasonably possible, secure its benefits to all those who were intended to receive them." In that case the court declined to disturb an award made under the Compensation Law by the Industrial Accident Board based upon the theory that the loss of his sight by a workman due to strain in lifting and handling heavy logs constituted an accidental injury. Approval was apparently given to a general statement from page 64 of the Cyc.-Corpus Juris Treatise on Workmen's Compensation Acts, that the word "accident" as used in Compensation Acts is to be understood "in the ordinary sense as meaning an unlooked for and untoward event which is not expected or designed." Idem, Fenton v. Thorley, L. R. App. Cas. (1903) 443. The same view is expressed in the more recent case of Aldrich v. Dole, 43 Idaho, 30, 249 P. 87. There the claimant was employed in driving an automobile truck. Being badly worn the gears would disengage when the truck was traveling at a high rate of speed, and to keep them in position the claimant was in the habit of pressing his leg against the shift lever. Due to the pressure and the more or less frequent impact of the lever when the gears failed to mesh, his knee was in the course of about five weeks so bruised as to result in a permanent physical disability.

With apparent approval the court quotes from Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097, 19 A. L. R. 107, as follows: "Since the case of Fenton v. Thorley, nothing more is required than that the harm that the plaintiff has sustained shall be unexpected. * * * It is enough that the causes, themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected. The test as to whether the injury is unexpected, and so, if received on a single occasion, occurs `by accident,' is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing."

And from Glasgow Coal Co. v. Welsh, 9 B. W. C. C. 371, as follows: "The learned counsel for the appellants argue that, in order to satisfy the act, there must be some distinct event or occurrence which, taken by itself, can be recognized as an accident, and then that the injury must be shown to have followed as a consequence from that specific event. But this is just the argument that was rejected in Fenton v. Thorley, supra. It is unnecessary to say more; but I venture to add that the argument seems to me to rest upon a misreading of the statute, which can only have arisen from a failure to give an exact attention to the actual words. The statute does not speak of an accident as a separate and distinct thing to be considered apart from its consequences, but the words `by accident' are introduced, as Lord Macnaghten says, parenthetically to qualify the word `injury.'"

And from Associated Employers' Reciprocal v. State Industrial Commission, 28 Okl. 249, 212 P. 604, as follows: "It is clear from a consideration of these two sections which the Idaho court holds to be the same in principle as the Idaho Act that it was the intention of the law to provide compensation for an injury sustained by an injured employee while engaged in any of the hazardous occupations coming within the act, and if such injury is sustained, it is by the act regarded as an accidental injury, unless excluded for willful injury, etc., as in the act provided, and there is no language in the act authorizing the conclusion that as a prerequisite to the right of compensation the claimant must show that he has suffered some injury resulting from some sudden or violent accident. It is clear that the development of an abscess in the palm of the hand of the claimant in the case at bar, resulting from the continuous use of the hand in using a pick in ditching, is such injury as is compensable under the law."

And from Fidelity & Casualty Co. v. Industrial Accident Commission, 177 Cal. 614, 171 P. 429, L. R. A. 1918F, 856, as follows: "* * * The phrase `injuries sustained by accident,' as used in the Workmen's Compensation Act St. 1913, p....