Opinion
No. 6791.
May 8, 1940.
APPEAL from the Industrial Accident Board.
Appellants appeal from an order awarding respondent compensation for the death of her husband under the Workmen's Compensation Law. Cause affirmed but remanded to the board to make award under Occupational Disease Compensation Law.
Clarence L. Hillman, for Appellants.
The rulings of law and orders of the industrial accident board must be based upon findings of fact that are based on substantial, competent evidence; and where, as in this case, there is no substantial, competent evidence that the decedent sustained a personal injury caused by an accident arising out of and in the course of his employment and that such injury caused by an accident resulted in carbon monoxide poisoning contracted in a building, shed or enclosed place, the said rulings and orders of the board for an award in favor of the employee and against the employer will be reversed and set aside. (I. C. A., secs. 43-1408, 43-1409 (as amended 1939 Sess. Laws, chap. 70); Const. V., 9, as amended (1937 Sess. Laws, p. 498); I. C. A., sec. 43-1001, as amended 1939 Laws, chap. 161, secs. 1, 43-1809, 43-1810; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Evans v. Cavanagh, 58 Idaho 324, 73 P.2d 83; Cochran v. Gritman, 34 Idaho 654, 203 P. 289.)
Anderson, Bowen Anderson, for Respondent.
This was an accident within the terms of the Workmen's Compensation Act. ( Sullivan Min. Co. v. Aschenbach, 33 Fed. (2d) 1, certiorari denied, 280 U.S. 586, 50 Sup. Ct. 35, 74 L.ed. 635.)
The death of Goaslind was not due to an occupational disease. ( Crowley v. Idaho Industrial Training School, 53 Idaho 606, 26 P.2d 180; Ramsay v. Sullivan Min. Co., 51 Idaho 366, 374, 6 P.2d 856; Reinoehl v. Hamacher Pole etc. Co., 51 Idaho 359, 6 P.2d 860.)
An occupational disease is one which inheres in the particular employment and cannot be prevented by reasonable means. ( Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000; Crowley v. Idaho Industrial Training School, supra; Ramsey v. Sullivan Min. Co., supra.)
Inhalations of poisonous gases, or dust, or other injurious substances by an employee while engaged within the scope of his employment and arising out of the employment is an. injury by accident arising out of and in the course of his employment. ( Tomlanovich. v. American Boston Min. Co. et al., 272 Mich. 493, 262 N.W. 293; Harrell-Davis Oil Co. v. State Industrial Com. et al., 175 Okl. 210, 51 P.2d 945; Schneider's Workmen's Compensation Law, vol. 6, Supp., p. 1075, sec. 208; Derleth et al. v. Roach Seeber Co. et al., 227 Mich. 258, 198 N.W. 948, 36 A.L.R. 472; Kingsley v. Donovan, 169 App. Div. 828, 155 N.Y. Supp. 801.)
William J. Goaslind had been employed for some four years prior to July 26, 1939, by the City of Pocatello as a driver of a grader propelled by a diesel motor. He drove on a platform on the grader covered by a metal top, 7 by 8 feet, supported by 4 uprights. The exhaust pipe from the motor was approximately a foot in front of the canopy or top of the cab in which Goaslind rode, extending vertically a foot above the metal top. In driving under trees the exhaust pipe had been broken at a place just about even with Goaslind's head and had been repeatedly repaired by him as part of his duties. On the day in question the pipe was broken and fumes therefrom were blown directly onto decedent who had to get out of the cab numerous times to secure relief from the effects of the gas fumes containing carbon monoxide gas. Such inhalation of carbon monoxide caused his death on the twenty-ninth. Upon application the board awarded compensation to the widow for the death of her husband as from an accidental injury.
If the last sentence in section 43-1001, as amended by section 1, chapter 161, 1939 Session Laws, page 287, construed together with section 43-2104 of section 2 of said 1939 Session Laws, being added as chapter 21 of the Workmen's Compensation Law, and the paragraph immediately following subsection 11 of section 43-2104 of the 1939 act, mean anything, they mean that where death of an employee results from an occupational disease, recovery may be had only because of the onslaught of such disease and not by reason of accidental injury. Carbon monoxide poisoning is defined by the statute as an occupational disease and therefore recovery may not be sustained as for an accidental injury.
Sec. 43-2104, I. C. A., chapter 161, 1939 Session Laws, page 288:
"(2) Carbon monoxide poisoning in any process or occupation involving direct exposure to carbon monoxide in buildings, sheds, or enclosed places."
Chapter 161, 1939 Session Laws, supra, is supplementary to the industrial Workmen's Compensation Law and hence likewise to be liberally construed. The legislature by using the words "buildings, sheds, or enclosed places" very evidently meant and intended "enclosed places" to include other places than buildings or sheds and must have intended to include other than fixed loci.
Webster's New International Dictionary, second edition, defines enclosure thus: "That which is enclosed, or placed within something," and enclose: "To shut up or in; to shut or envelop in a receptacle or integument of some sort; to surround; to encompass; to bound, fence or hem in." Funk and Wagnalls New Standard Dictionary defines the term thus: Enclose: "to put a barrier around; to surround on all sides; envelop; encompass; contain." Enclosure: "that which encompasses, encloses, or shuts in, as a fence, wall, case or wrapper." 31 C.J. 393 states: Inclose or enclose, "A word with several common significations. To confine on all sides; to confine within; to envelope with surrounding material; to include; to part off or shut in by a fence; to set off as private property; to shut in; to surround." Inclosed place is defined as "a place inclosed on all sides by some sort of material."
That there is no dispute decedent died from carbon monoxide poisoning, and that the roof of the cab constituted a sufficient enclosure to deflect into decedent's lungs a lethal quantity of carbon monoxide, are sufficient reasons under a liberal construction of the statute, for holding the cab of the grader constituted an enclosure or enclosed place within the meaning of the statute.
The award to respondent may therefore be sustained on the ground that her husband died from carbon monoxide gas, as an occupational disease under the terms of the statute.
The conclusion and order of the board, to the effect that the respondent is entitled to recover compensation for the death of her husband, is affirmed, but the cause is remanded with directions to the board to fix the proper compensation for death under section 43-2107, I. C. A., chapter 161, Session Laws 1939. ( Fields v. Buffalo-Idaho Min. Co., Inc., 55 Idaho 212, 40 P.2d 114; Employers' Mut. Liability Ins. Co. v. McCormick, 195 Wis. 410, 217 N.W. 738; Brooks v. A. A. Davis Co., 124 Okl. 140, 254 P. 66.)
Costs to respondent.
Ailshie, C.J., and Budge, Morgan and Holden, JJ., concur.