Young v. Salt Lake City

• Decision Date: 05 May 1939
• Docket Number: 6079
• Citation: 90 P.2d 174,97 Utah 123
• Court: Utah Supreme Court
• Parties: YOUNG v. SALT LAKE CITY

90 P.2d 174

97 Utah 123

YOUNG v. SALT LAKE CITY

No. 6079

Supreme Court of Utah

May 5, 1939

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Olive Bailey Young, administratrix of the estate of Eli Forbes Bailey, against Salt Lake City for damages for wrongful death. Defendant's demurrer to complaint was sustained, and plaintiff appeals.

REVERSED AND REMANDED.

Gaylen S. Young, of Salt Lake City, for appellant.

Fisher Harris, City Attorney and E. R. Christensen and Gerald Irvine, Asst. City Attys., all of Salt Lake City, for respondent.

PRATT Justice. MOFFAT, C. J., and WOLFE, LARSON, and McDONOUGH JJ., concur.

OPINION

PRATT, Justice.

Eli Forbes Bailey, a laborer, was employed by Salt Lake City. He was put to work painting trucks. This he did using a paint spray. No mask was furnished him. He inhaled the vaporized paint, received lead poisoning and died. His work commenced March 24, 1935; he became ill April 10, 1935; and he died about April 15, 1935. These facts are assumed to be true as they are the allegations of a complaint to which a demurrer was sustained and the complaint dismissed. This appeal is from the lower court's sustaining of the demurrer and its dismissing of the action.

Mr. Bailey left as his sole heir at law, his mother Olive Bailey Young. She made application to the State Industrial Commission for compensation, under and pursuant to Section 42-1-43, R. S. U. 1933, of our Workmen's Compensation Law, which provides for compensation for injury or death "by accident arising out of or in the course of his employment." The Commission rejected her application on the ground that Mr. Bailey's illness was an "occupational disease" and not within the provisions of the law.

Subsequently, Mrs. Young as administratrix of her son's estate, brought an action under Section 104-3-11, R. S. U. 1933, which section reads in part as follows:

"Except as provided in chapter 1, of Title 42, when the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death * * *."

Chapter 1, Title 42, referred to in the first few words of the above quotation, refers to our Workmen's Compensation Law. Section 42-1-57 of that law (R. S. U. 1933) so far as applicable here reads as follows:

"The right to recover compensation pursuant to the provisions of this title for injuries sustained by an employee, whether resulting in death or not, shall be the exclusive remedy against the employer, except as in this title otherwise declared. * * *."

The City demurred to Mrs. Young's complaint alleging that her action was barred by Section 42-1-57, R. S. U. 1933, above quoted. It is the ruling on that demurrer which forms the basis of this appeal.

In reading this decision it should be kept in mind that the facts assumed by us are very limited. Had the case been tried upon its merits a different picture might have developed. If Mr. Bailey's illness was an occupational disease, the lower court was in error; if an accidental injury, it was a correct ruling.

We invite attention to the annotations in Industrial Comm. of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172, 6 A.L.R. 1463; Tintic Milling Co. v. Ind. Comm., 60 Utah 14, 206 P. 278, 23 A.L.R. 325; and 90 A.L.R. 619. Numerous cases of inhalations may be found there. See also the following Utah authorities: Tintic Milling Co. v. Ind. Comm. of Utah, 60 Utah 14, 206 P. 278, 23 A.L.R. 325 (a man gassed in a mine flue, held accidental); Bamberger Coal Co. v. Ind. Comm. of Utah, 66 Utah 203, 240 P. 1103, (over-exertion in loading coal, held not accidental); Hammond v. Ind. Comm. of Utah, 84 Utah 67, 34 P.2d 687, (another over-exertion case, held accidental); Amalgamated Sugar Co. v. Ind. Comm. of Utah, 56 Utah 80, 189 P. 69, (inhalation of carbon monoxide in lime kiln, held accidental); and Thompson v. Ind. Comm. of Utah, 82 Utah 247, 23 P.2d 930, (shaking a dust collector resulted in a particle of dust getting in the eye. The Court refused to set aside the Commission's finding that it was not accidental. This case is interesting and close as the eyes were already giving out under the work, but Doctor Hetzel testified that it was something getting in the eye at the time that caused the particular injury in question). We cite also a very interesting case in Colorado-- United States Fidelity & Guaranty Co. v. Industrial Commission, 76 Colo. 241, 230 P. 624. It held that the inhalation of an unusual amount of gas was accidental.

Various expressions have been used in the attempt to distinguish the accident from the occupational disease. Some of these we quote: Tintic Milling Co. v. Ind. Comm. of Utah, 60 Utah 14, 206 P. 278, 283, 23 A.L.R. 325 (cited above):

"Injury was traceable to a particular time, place, and circumstance." [90 P.2d 176] --referring to an accidental injury.

Industrial Comm. of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172, 6 A.L.R. 1463-1467, 2nd column:

"A disease contracted as a direct result of unusual conditions connected with the work, and not as an ordinary or reasonably to be anticipated result of pursuing the work, is to be considered an accidental injury."

Peru Plow & Wheel Co. v. Industrial Commission, 311 Ill. 216, 142 N.E. 546;

"'Occupational Diseases' are not covered by the Compensation Act [Smith-Hurd Stats. c. 48, § 138 et seq.], although not all diseases are to be excluded therefrom; an occupational disease being a diseased condition arising gradually from the character of the employee's work, but it is not an 'accident.' 'An accident,' as contemplated by the Compensation Act, is distinguished from an occupational disease, in that it arises by some definite event, the date of which can be fixed with certainty, but which cannot be so fixed in the case of occupational diseases.

"One of tests to distinguish an 'occupational disease' from disease resulting from injury caused by accident, as respects whether remedy for recovery of damages is limited to Workmen's Compensation Act, is that disease must be traceable to definite time and place of origin and there must be some definite thing happen which can be pointed to as immediate cause of breakdown, although employee may have been able to work in similar conditions for considerable period of time prior to happening of event which was immediate cause of breakdown." General Printing Corp. v. Umback, 100 Ind.App. 285, 195 N.E. 281.

"Lead poisoning which is gradual and cumulative over long period of time is not 'accidental injury' or disability within meaning of compensation statute." Cannella v. Gulf Refining Co. of Louisiana, La. App., 154 So. 406, 407.

"It is within the common knowledge of men that lead poisoning is a disease incident to the occupation of a painter, and if this young man, although employed as a common laborer undertook in the course of his employment to do the work of a painter, and by the reason thereof, in the natural and due course of events, contracted this disease as an incident thereto, it is the end of the controversy. But it is also common knowledge that in the occupation of a painter the exposure is so slight that this disease is slow and insidious in its development, and chronic in its character. In fact, the history of the development of this disease in this occupation shows that it is a matter of years instead of days, and that many escape altogether. * * * yet a case of lead poisoning developed in five weeks by a man employed in a white lead factory, who was furnished no respirator and was not advised that the white dust on his hands and mustache was poison, is reported by medical authorities as an extreme case of the rapid development of this disease. * * * There are cases recorded by reputable medical authorities where acute lead poisoning has developed immediately by sudden exposure...