Teater v. Dairymen's Cooperative Creamery of Boise Valley

• Court: Idaho Supreme Court
• Writing for the Court: Holden, Justice.
• Citation: Teater v. Dairymen's Cooperative Creamery of Boise Valley, 190 P.2d 687, 68 Idaho 152 (Idaho 1948)
• Decision Date: 26 February 1948
• Docket Number: 7348
• Parties: TEATER et al. v. DAIRYMEN'S COOPERATIVE CREAMERY OF BOISE VALLEY et al

190 P.2d 687

68 Idaho 152

TEATER et al. v. DAIRYMEN'S COOPERATIVE CREAMERY OF BOISE VALLEY et al

No. 7348

Supreme Court of Idaho

February 26, 1948

Rehearing Denied March 24, 1948.

Rehearing Denied March 24, 1948.

Appeal from Industrial Accident Board.

Order reversed and cause remanded with directions.

Hugh N Caldwell, of Caldwell, and Elam & Burke, of Boise, for appellant.

Industry takes employe as it finds him. If duties of employe precipitate, aggravate or accelerate a previous weakened condition, resulting in death, dependents are entitled to compensation. Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963; Cain v. C. C. Anderson Co., 64 Idaho 389, 133 P.2d 723; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605, 97 A.L.R. 1399; Aranguena v. Triumph Mining Co., 63 Idaho 769, 126 P.2d 17.

The facts in this case fully meet the requirements of Section 43-1001 Idaho Code Annotated as amended by Chapter 161, 1939 Session Laws, defining accident. There was an unexpected undesigned, and unlooked-for mishap, or untoward event, to wit: a coronary thrombosis and coronary occlusion accelerated and precipitated by work being performed arising out of and in the course of his employment. Section 43-1001 Idaho Code Annotated as amended by Chap. 161, 1939 Session Laws; Cain v. C. C. Anderson Co., 64 Idaho 389, 133 P.2d 723; Aranguena v. Triumph Mining Co., 63 Idaho 769 126 P.2d 17; Pinson v. Minidoka Highway Dist., 61 Idaho 731, 106 P.2d 1020.

E. B. Smith, of Boise, for respondents.

The burden of proof is on the claimant to show that decedent's death arose out of and in the course of his employment. Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189; Dunnigan v. Shields, 52 Idaho 195, 12 P.2d 773; Vaughn v. Robertson & Thomas, 54 Idaho 138, 29 P.2d 756.

To constitute an accident there must be some noticeable mishap or fortuitous incident of which the employee was conscious and following which injury resulted; or there must be some sudden or manifest change in the conditions or surroundings under which the employee was working. Sonson v. Arbogast, 60 Idaho 582, 94 P.2d 672; Hoffman v. Consumers Water Co., 61 Idaho 226, 99 P.2d 919; Cain v. C. C. Anderson Co., 64 Idaho 389, 133 P.2d 723.

In a case where injury might or could have been occasioned by either disease or accident, the claimant must fail in event the proof was insufficient to establish accident within the meaning of the workmen's compensation law; especially is this true since it is for the Board to decide such question of fact. Hoffman v. Consumers Water Co., 61 Idaho 226, 99 P.2d 919; Clark v. General Mills, 65 Idaho 742, 152 P.2d 895; Illinois Bell Tel. Co. v. Industrial Commission, 325 Ill. 102, 156 N.E. 319.

Holden, Justice. Givens, C. J., and Budge, Miller and Hyatt, JJ., concur.

OPINION

Holden, Justice.

Chester Otis Teater died August 4, 1944, suddenly and unexpectedly. August 10, 1944, the manager of the creamery made out an "Employer's Notice of Death of Employee", filing the same with the Industrial Accident Board September 20, 1944. The notice showed the following: "Heart; increased effort and exertion in connection with loading truck caused coronary occlusion by thrombus. The coronary occlusion caused the death of decedent." August 3, 1945, claim for compensation was filed by the widow of decedent, as an individual and as guardian of the minor daughter. November 12, 1946, claimant filed a petition with the Board praying that a time and place be fixed for hearing claim for compensation. The parties having failed to reach an agreement regarding compensation, the Board set the hearing for December 5, 1946, giving the parties notice thereof. December 5, 1946, the matter was heard. January 2, 1947, findings of fact and rulings of law were made and filed in favor of defendants and respondents and against claimant, whereupon the Board entered thereon the following order: "Wherefore, it is ordered, and this does order that Edith Teater, individually and as guardian of the estate of Bonnie Louise Teater, a minor, take nothing by these proceedings, and that her claim for compensation benefits against the defendants, Dairymen's Cooperative Creamery of Boise Valley, employer, and Aetna Casualty and Surety Company, surety, and each of them, be and the same hereby is denied and her application dismissed."

January 9, 1947, claimant prosecuted an appeal to this court from that order.

The Board found, among other things, that Teater performed logging work during the summer of 1927, and thereafter for three years performed ranch work during winter seasons and general timber work during the summers; for several years pruned orchards and performed general work, including operating his own truck line for a period of about five years; May 5, 1942, Teater entered the employ of defendant and respondent, Dairymen's Cooperative Creamery, employer, and worked for the creamery from May 5, 1942, to and including July 8, 1944; from July 9, 1944, to and including August 2, 1944, Teater was under a doctor's care, returning to work on the morning of August 3, 1944, and on that date, performed his regular work. Teater's regular work was that of a cream hauler, consisting mainly of obtaining merchandise invoices at his employer's office mornings, filling the invoices which consisted of butter to be delivered to patrons and ice cream to merchants, the butter being packed in packages weighing not over 30 pounds each, and the ice cream generally in 5-gallon packers weighing 60 to 80 pounds each, and occasionally in 20-gallon packers weighing upwards to 150 pounds each; Teater had assigned to him two cream routes, each of which he covered on alternate days, a distance of 60 to 80 miles; he would drive to the patrons' residences or farms on each route, pick up the cream theretofore placed in 10-gallon cream cans, empty it from other containers into the cream cans, then weigh the cream, take samples and load each can of cream by taking hold of the handles and boosting it upward with his knee to an upright position on the floor of the truck, always loading from the back end of the truck and pushing the can forward, an empty can, or cans, left with patron, having already been removed from the front end of a row of cream cans; he would also deliver butter to patrons and butter and ice cream to the merchants in the towns through which he traveled.

Teater would arrive back at the creamery about noon of each day, unload his truckload of cream by lifting the full cans of cream some six or eight inches to an endless belt which carried the cans of cream on a downward incline into the creamery, sometimes assisting in washing cream cans and always reloaded his truck with empty cream cans and then drove his truck to the creamery four blocks away and service the truck.

Teater always loaded his cream truck the previous afternoon with 35 to 38 empty 10-gallon cream cans, each about 24 inches in height and weighing 100-110 pounds when full; the floor of the cream truck was 44 inches from the ground and had a deck immediately back of the truck's cab, the floor of which was about six to eight inches higher than the top of the cream cans loaded onto the floor of the truck which included the area beneath the truck's deck; the floor of the truck deck being 74-76 inches from the ground.

During the morning of July 8, 1944, Teator worked as usual in covering one of the assigned cream routes and gathered a truckload of cream but did not unload his truck that day; after he came in from his route, he stopped at the home of Robert W. Welsh, the employer's route supervisor, telling him that he was not feeling very well, wanted some time off and was going to see a doctor, stating he had become choked up, had a pain and patted his chest; Teater did not look well to the route supervisor and the route supervisor at that time arranged that Teater might have time off; during the next day, July 9, 1944, a physician and surgeon was called to Teater's home and found Teater suffering from pain in his chest, bending over a chair, perspiring, in shock, and holding his chest; such physician diagnosed Teater to be suffering from a coronary thrombosis, administered morphine and nitro-glycerin and directed that he, the doctor, be kept advised of Teater's condition, especially if Teater didn't get better; on or about July 15, 1944, Teater went to the office of such physician and, in so doing, climbed a flight of stairs but appeared somewhat improved; the physician advised Teater to stay home and in bed; July 22, 1944, Teater again went to the office of his physician, appeared to have lost some weight, but still more improved and told his doctor he wanted to go back to work, had been working a little around his acreage, had dug some post holes, and that such work hadn't hurt him, was suffering only a little pain; his physician advised him to stay at home, not do any tasks such as he had related.

Proper treatment of the aforesaid heart affliction required Teater to lead a sedentary life for three or four weeks and not exert himself by performance of work for a period of two months or more thereafter; July 28, 1944, employer's route supervisor visited Teater at his home; Teater appeared weak; July 29, 1944, Teater went to the employer's plant told the employer's route supervisor he had been to see his doctor who "wasn't crazy about him returning to work"; that he wanted to return to work and indicated that he was feeling good; the employer's route supervisor thereupon made arrangements for Teater to return to work August 3, 1944, which Teater did. During the time intervening between July 15th and the end of July, 1944, Teater took two fishing...