Wade v. Pacific Coast Elevator Co.

• Decision Date: 25 September 1942
• Docket Number: 7038
• Citation: 64 Idaho 176,129 P.2d 894
• Parties: ANNETTE WADE, Appellant, v. PACIFIC COAST ELEVATOR COMPANY, Employer, and TRAVELERS INDEMNITY COMPANY, Surety, Respondents
• Court: Idaho Supreme Court

129 P.2d 894

64 Idaho 176

ANNETTE WADE, Appellant, v. PACIFIC COAST ELEVATOR COMPANY, Employer, and TRAVELERS INDEMNITY COMPANY, Surety, Respondents

No. 7038

Supreme Court of Idaho

September 25, 1942

Rehearing denied October 26, 1942.

WORKMEN'S COMPENSATION-DEATH AS RESULT OF ACCIDENT-BURDEN OF PROOF-EVIDENCE-FINDINGS OF BOARD-REVIEW.

1.Death is not in itself an "accident" within the statutory definition in Workmen's Compensation Act though often the result of accident.(Sess. Laws, 1939, ch 161, sec. 1.)

2.Employers' liability compensation is not meant or intended as life or health insurance but is purely accident and occupational disease insurance.

3.In proceedings for compensation for death of an employee claimant had burden of proving that death was result of an accident.

4.On appeal in industrial accident cases, the Supreme Court is limited to review of questions of law only.(Const., art. 5 sec. 9;seeSess. Laws, 1937, p. 498.)

5.Evidence warranted denial of claim for compensation for death of an elevator foreman, whose body was found in a grain bin, on ground that foreman did not die as result of an accident arising out of or occurring in course of his employment.(Sess. Laws, 1939, ch. 161, sec. 1.)

APPEAL from the Industrial Accident Board.

From order denying claim for compensation and dismissing petition, plaintiff has appealed.Affirmed.

Affirmed.

Jones, Pomeroy & Jones and Chas. T. Cotant for appellant.

To constitute "accident" within Workmen's Compensation Act, it is not necessary that the workmen trip or fall, or that machinery fail, but an "accident" occurs in doing what workman habitually does, if any unexpected, undesigned, unlooked for, or untoward event or mishap, connected with or growing out of the employment takes place.Pinson vs. Minidoka Highway District,61 Idaho 731(106 P.2d 1020);McNeil vs. Panhandle Lumber Co.,34 Idaho 773, 203 P. 1068;In re Larson,48 Idaho 136, 279 P. 1087;Cook v. Winget,60 Idaho 561, 94 P.2d 676;Hieronymus v. Stone's Food Stores, Inc.,60 Idaho 727, 96 P.2d 435.

Where an employee while engaged in the work of his employment aggravates or accelerates coronary thrombosis from which he is suffering thereby hastening his death, constitutes a personal injury by accident which is compensable under the Workmen's Compensation Laws.(Aranguena v. Triumph Mining Co., et al,126 P.2d 17;Schirmer v. Cedar County Farmers Telephone Co.(Neb.),296 N.W. 875;In re Soran,47 Idaho 483;Larson v. Blackwell Lumber Co.,48 Idaho 136; 279 P. 1087.)

Merrill & Merrill for respondents.

The court will not disturb the findings of the Industrial Accident Board where such findings are based on competent evidence even though there may be a conflict in the evidence.Golay v. Stoddard,60 Idaho 612, 105 P.2d 1002;Knight v. Younkin,61 Idaho 612, 105 P.2d 456;Strouse v. Hercules Min. Co.,51 Idaho 7, 1 P.2d 203.)

Death from coronary embolism, or similar ailments, occurring while the employee is at work, not caused by any objective happening outside his usual work, even though it be accelerated by the necessary exertion incident to his employment, is not the result of an accident and compensation cannot be recovered.Pierce v. Phelps-Dodge Corporation, (Ariz.)26 P.2d 1017;Rowe v. Goldberg Film Delivery Lines, (Ariz.)72 P.2d 432;Maas v. Otis Elevator Company, (Pa.)12 A.2d 814;Royko v. Logan Coal Co., (Pa.)22 A.2d 434;Guthrie v. Detroit Shipbuilding Co., (Mich.)167 N.W. 37.)

AILSHIE, J. Givens, C. J., and Budge, J., concur.Morgan and Holden, JJ., dissenting.

OPINION

AILSHIE, J.

John Franklin Wade commenced working for the Pacific Coast Elevator Company(respondent) as a seasonal employee, in August, 1938.Between June and September, 1941, Wade was regularly employed by respondent, working ten hours a day, beginning at 7 o'clock in the morning.He was the mill or elevator foreman of the company,

"and his job was to see that the men who were working for us[company] did their work properly and that the wheat went into the proper bins, that the trucks were weighed correctly, that the wheat was properly graded on the testing scales and make out the scale tags, and keep a copy and one for the elevator, direct where the sacks of wheat should be piled outside, if necessary, and which bin the wheat should go into, and generally see that the work was properly conducted . . . .He would help unload a load of wheat once in a while--it was part of his job."

In order to inspect the bins, where the wheat was being stored, Wade climbed a 47-foot vertical ladder "Sometimes once or twice a day and sometimes three or four times."

September 2d, 3d, and 4th, 1941, Wade was not feeling well and asked for leave to remain at home.He was not in bed and did not call a doctor.The manager of the company, who visited him at his home, testified that Wade "had felt that way before and in two or three days it passed off and he was all right again."He had told the manager that "about the middle portion of his back was where he seemed to ache and pain the most."He had complained to his wife "of the heat and the dust."

September 5, 1941, Wade went back to work, and "seemed to be fine", his wife said.The manager of the company and one of the employees working at the elevator, said Wade "looked all right" that day.In the afternoon, about 3:30, he helped one of the men unload between 60 and 70 sacks of wheat, each one averaging from 135 to 150 pounds.After piling up the grain, the two men "sat down on the grain pile and rested up a little bit."Wade then climbed the ladder to the elevator, "to check the bins to see how much room he had", and "called for the grain to be elevated up"; and "to shoot it up full".

The testimony indicates that "possibly half or two-thirds of a truck load" of grain was elevated.Evidently Wade "must have been shoveling grain, or trying to make room", as he had told Littlefield, the other employee, "he was going up to make some room".In five or six minutes the grain "back-legged and ran over."Littlefield called up to Wade but received no answer.After the machinery was stopped, Mr. Meadows, the manager, climbed the ladder and found Wade lying in the bin "as if he had laid down or fallen over or something of the sort . . . .The shovel was standing straight up in the wheat a short distance, a foot or two from his feet."Mr. Meadows rubbed Wade's face and hands and felt his pulse but could find no sign of life.A physician (Farrell of American Falls) was called and pronounced him dead.Dr. Farrell testified in part as follows:

". . . . I wired the State Insurance Fund that a man was found dead and that the cause of the death was unknown . . . .It seems they wanted to know the cause of the death and I didn't know.He apparently hadn't suffered any injury that I could detect, . . . .The brain was removed and I still found no cause for his death, . . . .

"Q.As to the cause of the death of the decedent, Wade? . . . .Have you an opinion?

"A.Yes.

"Q.State what your opinion is. . . .

"A.Accepting Dr. Howard's opinion from his microscopic examination that he had a coronary thrombosis, then I have an opinion as to what caused his death . . . .I accept as true that the microscopic examination made by Dr. Howard reveals thrombosis in the arteries as related . . . .If I were to read his report without his conclusions, I could know he had coronary thrombosis . . . .I think he died of coronary thrombosis.

"Q.Have you an opinion, Doctor, whether or not the type of work that he was doing as described in the hypothetical question immediately preceding his death accelerated or aggravated the condition of his heart? . . . .

"A.My opinion is that, provided he had coronary thrombosis and that he did the type of work as set forth, it would have some effect upon his death . . . .An examination of the chest and abdomen revealed no cause for his death --that is no objective cause of his death.I made a gross examination of the arteries, the heart, the lungs and kidneys, the stomach and other organs of the abdomen and found no cause for his death . . . .I still was unable to determine why he died after I did the autopsy . . . .We don't know when death is coming in coronary thrombosis, it may be the next thirty minutes and it may be the next two years, regardless of whether they exercise or don't exercise . . . .It would appear that he wasn't suffering at the moment from cardiac distress from climbing the ladder."(Italics supplied.)

Dr. Howard, a graduate of Johns Hopkins Medical School, who never saw the body but made an examination of certain portions thereof, testified:

"These organs, the heart and brain were examined by myself in considerable detail, both grossly and microscopically the brain was completely normal to microscopic and gross appearance . . . .No abnormalities were found in the kidney or the spleen or the lung.The only abnormality of any great consequence which I found were in the blood vessels of the heart.The heart was not enlarged . . . .The heart muscle appeared fairly normal.No great amount of scarring of the heart muscles.The valves of the heart were completely normal . . . .Both right and left coronary arteries showed considerable hardening of the arteries, arterio-schlerosis . . . .

"Q.Would that indicate the heart was in a damaged condition?

"A.Well, it indicates the heart has an inadequate circulation.

"Q.And according to this report, you stated it showed that those occluded areas, organized thrombi, or blood clots had existed for a period of about six weeks to six months?

"A.Certainly at least six weeks and perhaps several months. . . .

"Q.Is that what is commonly called coronary...