243 P. 5 | Wash. | 1926
Gust Frandila was a coal miner, and in June, 1924, was sixty years of age. For eight months prior to June, he had been out of employment, and what work he did during that period was limited to chopping firewood for his home. On the 2nd day of June, he was employed to assist in digging a ditch for a sewer in one of the streets of Hoquiam. He went to work at one o'clock in the afternoon, and, about three hours thereafter, he was noticed by the foreman to stop chopping on a root at the bottom of the ditch, which was then some 4 1/2 feet deep, throw away his ax, lean against the ditchside and collapse. Assistants went to him, and he was picked up and brought out onto the *531 sidewalk, where he died in about fifteen minutes. The ditch was being dug through a clay soil, and the witnesses testified that it was hard digging. It was necessary to cut out roots of varying sizes, and the root, upon which Frandila was working at the time of his collapse, was from six to eight inches in diameter. Witnesses also testified that the cutting of these roots was hard work. The testimony established that the workman was suffering from hardening of the arteries, and that he died from either a rupture of a blood vessel or embolism. The respondent, the workman's widow, made claim for compensation to the appellant, the department of labor and industries; and, the claim having been disallowed, an appeal was taken to the superior court, which reversed the action of the department, and from that decision the appeal is taken here.
The department contends that the death of the workman was not occasioned by a fortuitous event, in that there was no unusual strain or exertion, but that it was occasioned by the hardening of the arteries, which is a slow, progressive disease, and, when sufficiently advanced, produces death under ordinary exertion. Section 7679, Rem. Comp. Stat., provides that every injured workman, or his family, is entitled to compensation where death results from an injury, and, in § 7675, "injury" is defined as referring "only to an injury resulting from some fortuitous event as distinguished from the contraction of disease." The question then is, whether the testimony in this case shows a fortuitous event.
[1] It is plain from the evidence that the hardened arteries, coupled with over-exercise in the course of employment, caused either the hemorrhage or embolism. The chopping of the root was a definite and particular occurrence, which was the contributing, proximate *532
cause of the death. The question of whether an injury has been the result of an accident or an accident arising out of the employment, which are narrower terms than fortuitous event, has been considered by many courts, and the result of these decisions seems to be, that an accident exists when a man undertaking work is unable to withstand the exertion required to do it, whatever may be the degree of exertion used or the condition of the workman's health. The supreme court of Kansas, in Gilliland v.Ash Grove Lime Portland Cement Co.,
In Madden's Case,
"When a pre-existing heart disease of the employe is accelerated to the point of disablement by the exertion and strain of the employment, not due to the character of the disease acting alone or progressing as it would in any rational work, there may be found to have been a personal injury."
The supreme court of Maine, in Brown's Case,
"The defendants contend that there is no evidence of accidental injury; that what occurred was the development of disease, and not the happening of an accident.
"The word `accident,' frequently the subject of judicial interpretation, has been recently defined by this court with copious citation of authorities. Patrick v. Ham,
"If a laborer performing his usual task, in his wonted way, by reason of strain, breaks his wrist, nobody would question the accidental nature of the injury. If instead of the wrist it is an artery that breaks, the occurrence is just as clearly an accident."
In Babich v. Oliver Iron Mining Co.,
The supreme court of Indiana, in Haskell Barker Car Co. v.Brown,
In Chicago Alton R. Co. v. Industrial Commission,
In Fowler v. Risedorph Bottling Co.,
Similar decisions were made by the English courts and are found reported in: Johnson v. Owners of Ship "Torrington," 3 B.W.C.C. 68; Trodden v. Lennard, 4 B.W.C.C. 190; Doughton v.Hickman, 6 B.W.C.C. 77. An interesting and instructive discussion of this subject is found in the House of Lords case,Clover, Clayton Co. v. Hughes, 26 Times L.R. 359, where in the course of the opinion of the Lord Chancellor he said:
"A workman, while engaged in tightening a nut with a spanner, strained himself and thereby ruptured an aneurism of the aorta, which caused his death. A postmortem examination showed that the aneurism was in *535 such an advanced condition that it might have burst while the man was asleep, and that very slight exertion or strain would be sufficient to bring about a rupture.
". . . I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the County Court Judge that the strain in fact caused the rupture, meaning, no doubt, that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade. Nor do I think we should attach any importance to the fact that this man's health was as described. If the state of his health had to be considered, there must be some standard of health, varying, I suppose, with men of different ages. An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.
"It may be said, and was said, that if the Act admits of a claim in the present case, every one whose disease kills him while he is at work will be entitled to compensation. I do not think so, and for this reason. It may be that the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened while he was working. In each case the arbitrator ought to consider whether, in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that, whatever the man had been doing, it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone, or from the disease and employment taken together, looking at it broadly. Looking at it broadly, I say, and free from overnice conjectures, was it the disease that did it or did the work he was doing help in any material degree?"
Reference to the cases from this court where the question of fortuitous event has been considered shows that those decisions are in harmony with the ones already *536
referred to from other jurisdictions. In Horsfall v. PacificMutual Life Ins. Co.,
"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.
"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."
On the same subject, in Stertz v. Industrial InsuranceCommission,
"In this last we notice, first, not merely the avoidance of `accident' but of `arising out of the employment,' the use of which this definition fairly invited if that were to be meant. Second, exclusion by enumeration. *537 Disease is excluded; everything else is included. Lastly,`fortuitous event,' the strongest term that could be used, no popular expression but one used by lawyers for positive strength, a term in truth that is selected when one wishes all of `accident' and more."
In Shadbolt v. Department of Labor Industries,
"It may be accepted as the law, as contended by the appellant, that there must be a definite or particular occurrence to which the injury can be attributed. The evidence in this case meets this requirement and fixes the occurrence at the time of the first illness. Even though the appendix was diseased and in course of time would have ruptured without any external pressure, if its rupture was accelerated by such pressure, this would constitute an injury."
See, also, Clark v. Department of Labor Industries,
The contributing and proximate cause of the workman's death was an unlooked for mishap and untoward event, not expected or designed. The exertion necessary to cut the root in the bottom of the trench was the extra weight thrown into the scale, along with the workman's physical condition, which occasioned the injury. It is not necessary, in order for a person to recover compensation as an injured workman, that he must have been in perfect health at the time he received the injury. That is not the intent of the act, and it cannot reasonably be given any such interpretation. Where a workman, not in perfect health, during the course of his employment makes an extra exertion which, in addition to his infirmity, causes an injury, such injury is a fortuitous event, and brings him within the operation of the compensation.
The judgment is affirmed.
TOLMAN, C.J., PARKER, MITCHELL, and MAIN, JJ., concur. *538