Zappala v. Industrial Ins. Com'n

• Decision Date: 17 November 1914
• Docket Number: 12107.
• Citation: 144 P. 54,82 Wash. 314
• Parties: ZAPPALA v. INDUSTRIAL INS. COMMISSION.
• Court: Washington Supreme Court

144 P. 54

82 Wash. 314

ZAPPALA v. INDUSTRIAL INS. COMMISSION.

No. 12107.

Supreme Court of Washington

November 17, 1914

Department 1. Appeal from Superior Court, Chehalis County; Mason Irwin Judge.

Claim by John Zappala against the Industrial Insurance Commission. From a verdict of the jury in favor of claimant on appeal from the action of the Commission in rejecting the claim, the Commission appeals. Affirmed.

W. V Tanner, Atty. Gen., and John M. Wilson, Asst Atty. Gen., for appellant.

F. W Loomis, of Aberdeen, for respondent.

MORRIS J.

Respondent suffers from a hernia and, claiming to have received it under circumstances entitling him to relief under the Workmen's Compensation Act (Laws 1911, p. 345), filed his claim with the Industrial Insurance Commission. The claim was rejected upon the ground that the hernia complained of was not the result of 'some fortuitous event' within the language of the act. Respondent then appealed to the lower court where, over the objection of the Commission, the case was submitted to a jury to determine whether or not the injury was such as fell within the act. Verdict was returned for respondent, and the Commission appeals.

The determinative question arises under section 3 of the act, providing that:

'The words 'injury' or 'injured,' as used in this act, refer only to an injury resulting from some fortuitous event as distinguished from the contraction of disease.'

The respondent was in the employ of a cooperage company, and on the day of the alleged injury was pushing a heavily loaded truck. The language of the respondent in describing the circumstances under which the injury was received was:

'That the car ran harder than usual, and he tried three or four times to start it but could not move it. Then he put all his strength into it, gave a jerk and hurt himself; felt a sudden pain; could not move for a little while; put his hands where he felt the hurt and called for help; looked at himself and saw a swelling, a small lump where he was hurt; that he had never had any pain there before or any previous rupture.'

There was other corroborative evidence. It is the contention of the Commission that these circumstances do not disclose that the injury resulted from 'a fortuitous event,' and that no accident occurred which produced the injury, contending that, inasmuch as respondent did not slip or fall, nothing struck him, and nothing happened out of the ordinary which produced the rupture or hernia, it cannot be said that the hernia resulted from some fortuitous event. 'Fortuitous' is defined as: 'Occurring by chance as opposed to design; coming or taking place without any cause; accidental; casual;' and a fortuitous cause is said to be, 'A contingent or accidental cause.' Standard Dictionary.

In construing the language of the act we must have in mind the evident purpose and intent of the act to provide compensation for workmen injured in hazardous undertakings, reaching 'every injury sustained by a workman engaged in any such industry, and make a sure and certain award therefor, bearing a just proportion to the loss sustained, regardless of the manner in which the injury was received' ( State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L. R. A. [N. S.] 466), Peet v. Mills,

76 Wash. 437, 136 P. 685. The sustaining of an injury while using extreme muscular effort in pushing a heavily loaded truck is as much within the meaning of a fortuitous event as though the injury were the result of a fall or the breaking of the truck. To hold with the Commission that if a machine breaks, any resulting injury to a workman is within the act, but if the man breaks, any resulting injury is not within the act, is too refined to come within the policy of the act as announced by the Legislature in its adoption and the language of the court in its interpretation. The machine and the man are within the same class as producing causes, and any injury resulting from the sudden giving way of the one, while used as a part of any industry within the act, is as much within the contemplation of the act as the other. When the appellant admits that the breaking of the truck because of the application of unusual force with resultant injury to the workman is covered by the act, then it must admit that the tearing of muscles or the repture of fibers, or whatever it is that causes hernia, while exercising unusual effort, is likewise covered by the act; for there can be no sound distinction between external and internal causes arising from the same act and producing the same result. In Boardman v. Whitworth, 3 W. C. C. 33, a case arising out of the British Workmen's Compensation Act, it was held that an internal injury caused to a person in a normal state of health was a fortuitous and unforeseen event, in a case where a workman while lifting a heavy beam suddenly tore several fibers of the muscles of his back. In Purse v. Hayward, 1 B. W. C. C. 216, it was likewise held that a workman in his master's field, who, finding that the grain had been trodden down by bullocks, stooped to raise it and sprained his left leg, was within the remedies of the same act. The language of the British act is 'personal injury by accident arising out of and in the course of employment.' The English cases make no distinction between an accident and a fortuitous event as used in our act, for they say in the case above cited, in answering the contention there made that an injury, to be within the British act, must be caused by some fortuitous and external event, that:

'The word 'accident' is a popular word of very wide meaning. Originally a grammarian's word, it has been used from Dr. Johnson's time until to-day to mean 'that which happens unforeseen, casualty, chance.' For four years this man had successfully used these muscles to lift this weight; owing, perhaps to carelessness, perhaps to a slip, perhaps to some other cause, except disease, he snaps the fibers of the muscles that had always successfully done the work, and if any ordinary person had been asked what had happened to him, he would have said that the man had had an 'accident,' and I think the word would have been rightly used. To me it is the same as if he had been using a rope strong enough for the purpose, and by overstrain or sudden jerk the rope had snapped and the beam had fallen upon him. That would be an accident. In one case the work is done by a rope; in the other by a set of muscles. In each case the machinery is normally fit for the work, but the unexpected happens, and the rope or muscle snaps and there is an accident. To may thinking, there is in the word 'accident' always an element of injury. * * * As to the word 'fortuitous,' I do not think I need trouble much about it. If the injury were caused by disease, it is clear that the applicant could not recover; but I find as a fact the man was not in any way diseased. Indeed, it was not seriously contended that he was. 'Fortuitous' means 'accidental,' 'casual,' 'happening by change;' and I have already said that, in may opinion, this injury was caused by an accidental and fortuitous event.'

So that, so far as concerns the class of injuries for which acts of this character provide...