Vaughn v. Robertson & Thomas

• Decision Date: 27 January 1934
• Docket Number: 6007
• Citation: 29 P.2d 756,54 Idaho 138
• Parties: IRENE A. VAUGHN, Respondent, v. ROBERTSON & THOMAS, a Copartnership, Composed of JOSEPH W. ROBERTSON and JOHN THOMAS, Employers, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

29 P.2d 756

54 Idaho 138

IRENE A. VAUGHN, Respondent, v. ROBERTSON & THOMAS, a Copartnership, Composed of JOSEPH W. ROBERTSON and JOHN THOMAS, Employers, and STATE INSURANCE FUND, Surety, Appellants

No. 6007

Supreme Court of Idaho

January 27, 1934

WORKMEN'S COMPENSATION ACT-INDUSTRIAL ACCIDENT-INSECT BITE ARISING OUT OF-IN THE COURSE OF-INDUSTRIAL ACCIDENT BOARD-FINDING CONCLUSIVENESS OF.

1. Compensation claimant has burden of proving that deceased employee received personal injury by accident arising out of and in course of employment (I. C. A., sec. 43-1001).

2. Findings of Industrial Accident Board are conclusive and will not be disturbed if there is sufficient competent evidence to support them (I. C. A., sec. 43-1408).

3. On appeal from Industrial Accident Board, if evidence is uncontradicted and only one reasonable inference can be drawn therefrom, question whether award should be made is one of law for court, but, if reasonable men could draw different inferences, board's findings are conclusive (I. C. A sec. 43-1408).

4. Where shepherd died as result of Rocky Mountain spotted fever caused by bite of infected wood-tick, but evidence did not disclose what deceased was doing between time he left range with sheep and date of sickness developed and when and where deceased was bitten, board's finding that death was not caused by accident arising out of and in course of employment held supported (I. C. A., sec. 43-1001).

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

Proceeding under Workmen's Compensation Act. Appeal from judgment of district court reversing order of Industrial Accident Board refusing compensation. Reversed.

Judgment reversed. No costs allowed.

Bissell & Bird, for Respondent.

Within the Workmen's Compensation Act the words "out of" refer to origin or cause of the accident, and the words "in the course of" to the time, place and circumstances under which it occurred. (Walker v Hyde, 43 Idaho 625, 253 P. 1104; Rush Const. Co. v. Woodward, 159 Okla. 72, 14 P.2d 409.)

It is sufficient to prove with reasonable probability that the accident arose out of and in course of the intestate's employment, in order to receive an award; the law contents itself with probabilities, and declines to wait for certainty before drawing its conclusions. (Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; 28 R. C. L. 812; 27 Cal. Jur. 488.)

A. F. James, for Appellants.

In order for an injury to arise in the course of the employment, it must be sustained while the employee was doing the thing for which he was employed. (Walker v. Hyde, 43 Idaho 625, on p. 631, 253 P. 1104; Stewart v. St. Joseph Lead Co., 49 Idaho 171, 286 P. 927; Workmen's Compensation Act, Corpus Juris, sec. 72.)

The burden is upon claimant to establish that the injury arose in the course of the employment, that is, that it occurred while the employee was performing the duties which he was employed to perform. (Dunnigan v. Shields, 52 Idaho 195, 12 P.2d 773; Sponatski's Case, 220 Mass. 526, 108 N.E. 464, Ann. Cas. 1916A, 333; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992.)

WERNETTE, J. Budge, C. J., Givens, J., HOLDEN, J., and MORGAN, J., concurring.

OPINION

WERNETTE, J.

This proceeding was instituted under the Workmen's Compensation Act on account of the death of A. H. Vaughn on December 15, 1931. The appeal is taken from the judgment of the district court reversing the order of the Industrial Accident Board refusing compensation.

The deceased, A. H. Vaughn, had, off and on for a number of years prior to his death, been engaged in herding sheep for appellants, Robertson & Thomas, a copartnership. On or about October 20, 1931, while so employed in herding sheep for appellants, the deceased came off the government forest reserve with his sheep, bringing them to a ranch of appellants' known as the Joslyn Ranch. There is no evidence in the record as to how the time of the deceased was occupied between October 20 and November 3, 1931, except that appellant, J. W. Robertson, testified that he paid deceased his salary for the month of October and the first five days in November. On or about November 5th, A. H. Vaughn was found seriously ill at the sheep corral on said ranch, and his illness later proved to be Rocky Mountain spotted fever, which illness, undoubtedly, was caused by the bite of an infected wood-tick. It was shown in the record that the region where the deceased had been herding the sheep is one that is infested with ticks. On November 6th, J. W. Robertson took Vaughn from the Joslyn Ranch to his son's home at Jerome, Idaho. He was immediately placed under a doctor's care, who diagnosed his illness as spotted fever and treated him for such fever over a period of about twelve days when Vaughn began convalescing; the doctor then ceased his visits. Before Vaughn had recovered sufficiently to be up and around, and on or about November 28th, he developed secondary pneumonia of the right lung, which the doctor testified is a typical development and usual complication following a case of spotted fever. The doctor treated Vaughn for pneumonia for a period of about eight days, after which he again ceased his visits as it appeared the patient had recovered. However, Vaughn was never well enough to be up and around again except to sit in a chair one day while his daughter-in-law cut his hair, and about ten or twelve days after the doctor's last visit he suddenly died from acute cardiac failure. The doctor testified that the proximate and primary cause of the death was the infection from spotted fever and the complications which followed. In the death certificate the doctor described the principal cause of death and related cause of importance as, "Cardiac failure following Rocky Mt. Tick Fever," and gave as the contributory causes of importance, "Rocky Mt. Tick Fever--Secondary Pneumonia."

This action was instituted by Irene A. Vaughn, widow of the deceased, who was living with deceased as husband and wife but had spent most of her time in Missouri for about ten years preceding his death. It appears that A. H. Vaughn had made several trips to Missouri during this ten year period to see respondent, and his visits had lasted for from six months to a year in duration; once, in 1930, she had visited him in Idaho for a period of about two months. There is ample evidence in the record supporting the finding that during all of this time the deceased had sent money to respondent for her support and had made payments on a car for her; on a number of occasions J. W. Robertson had sent the salary checks of deceased directly to respondent. At the time of his death deceased had a dependent son living of the age of eleven years.

The Industrial Accident Board found that Vaughn died, "from an attack of acute cardiac failure; that the said pneumonia and the acute cardiac failure of which the said Vaughn died and which followed the Rocky Mountain Spotted Fever were complications of, caused by, and the result of the Rocky Mountain Spotted Fever," but that the death "was not caused by nor the result of an accident arising out of and in the course of his employment with the defendants, Robertson & Thomas." On appeal to the district court the order of the Industrial Accident Board was reversed and a judgment awarding compensation was entered; hence this appeal.

Numerous errors are assigned by appellants, but the determination of one question raised is decisive of this case. The claimant, in order to recover, has the burden of proving that the deceased received personal injury by accident arising out of and in the course of his employment. (Sec. 43-1001, I. C. A.) In the determination of the question as to whether the personal injury by accident arose out of and in the course of the employment of the deceased, a number of well established legal principles are applicable and must be considered.

In the recent case of Logue v. Independent School Dist. No. 33, 53 Idaho 44, 21 P.2d 534, this court approves the definition as to when an injury arises in the course of employment, as laid down in the case of Murdoch v. Humes & Swanstrom, 51 Idaho 459, 6 P.2d 472, as follows:

"An injury arises in the course of the employment when it takes place (a) within the period of employment, (b) at a place where the employee may reasonably be, and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it."

The Industrial Accident Board, from the evidence, made the following finding with reference to the death of the deceased:

"That the death of the said A. H. Vaughn was not caused by nor the result of an accident arising out of and in the course of his employment with the defendants, Robertson & Thomas."

It has been the uniform holding of this court that the findings of the Industrial Accident Board are final and conclusive, and will not be disturbed if there is sufficient competent evidence to support the same. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515; Delich v. Lafferty Shingle Mill Co., 49 Idaho 552, 290 P. 204; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189; Ramsay v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856.)

In Dunnigan v. Shields, 52 Idaho 195, 12 P.2d 773, this court stated:

"There is but one question before us for determination, namely: Is there sufficient competent evidence in the record to support the findings complained of? The burden is upon the...