*1 changed two “no” the result of ballots could have or rendered holding the election doubtful. lower court was correct null, election effect. void no MR. CHIEF JUSTICE HARRISON and MR. JUSTICE ANGSTMAN: Bottomly’s
We concur in the result reached in Mr. Justice opinion reasoning expressed and also concur con- curring opinion Mr. Justice Castles. HINES,
MARTHA
INDUS
Respondent,
Claimant
Appellant.
TRIAL
BOARD, Defendant
ACCIDENT
10153.
No.
September 26,
1960. Decided
1960.
Submitted
December
Myles respondent, Thomas, Helena, appeared for J. orally. gued Opinion of the
MR. the JUSTICE ANGSTMAN delivered Court. defendant, Accident appeal by
This is Industrial an the compensation and judgment awarding from a claimant denied reversing the Industrial Board’s order which Accident compensation. Floyd Hines, who was
Claimant widow of the late J. the City as the street de- employed by the of Helena foreman of then 27 partment July until his on 1958. He was death the years July regular foreman of age. the was department hospital sanitation in the and deceased was substituting part time as foreman the sanitation of the department in addition duties foreman of the street to his as July 22, department. job the afternoon While on the on superintendent complained of a to the he headache evening department street sanitation and that same and began temperature, had nauseated and had perspire, was hospital difficulty walking. July 23, On he was taken spinal, and diagnosed poliomyelitis, his illness bulbar was laboratory analysis. polio, diagnosis which was confirmed appeal single question arises on this is whether The which against findings preponderates or not evidence of the justify pre- in finding as to the trial court that the Board so correctly sumption that the Industrial Accident Board decided overcome, in finding poliomyelitis contracted was and compensable industrial accident. deceased constituted July days prior trial court found that for three or more Floyd doing city Hines which J. for the the work sun, climbing off him to the hot trucks required asphalt, doing other streets with hot patching were which required him to be at sun which also fatiguing work the hot prox- jungles and close city shops located near the hobo city which often contained imity garbage trucks of the to the matters, around matter and other human waste human fecal abounded, that ate his lunch flies he also flies and blow garbage trucks from city shops, 50 to feet where at the which runs city sewer parked and about a block were jungles. through the hobo July 22, day during the course of the on
The court found feeling superior his that he wasn’t well. complained Hines stayed job, though aspirin on the then tablets He took some Upon completion of go he home. superior suggested his fever, had a was vomit- days home. then work he went He appetite, running nose; he had no ing, had convulsions and a flushed ached, sweating profusely, his skin was he head complained pain legs. in his The fol- and he weakness *3 a doctor’s day walk; not was carried to lowing he could he hospital where he died. office and later to uneontradieted evidence disclosed The court found that the following: flies, sewage and “(a) polio is isolated from virus activity predisposition polio, is a in “(b) physical factor regarded with insects, sewage all been “(c) water and epidemics polio, suspicion in sweating, nausea, fever, vomiting, profuse “(d) headache, pain likely constipation, skin, more flushed diarrhea but in polio the extremities are found of the muscles of weakness ’’ cases. required that Hines’ “work specifically found The court likely polio more that places in where it was him be public generally places it where the than did virus existed to be.” had occasion witness, Lar- expert Dr. Board’s court found that
The might have that possibility deceased son, exclude the “did not his a result of work.” virus as with the come contact where, when, exactly that “No one knows found The court the disease.” contracts why poliomyelitis victim how that the Board was found As of law the court conclusions medical evidence “uncontroverted finding that error not was poliomyelitis contraction showed that claimant’s causally employment.” related to require not does specifically court found that the law
The
injury
from some fortuitous event.
result
either the
injury
“An
is accidental when
found
The court
unexpected. Murphy v. Anaconda
the result
cause or
The court’s conclusion of Martha Ill Hines “The of Law No. that Board’s Conclusion experts compensation called is erroneous. is not entitled to Hines work which was effect said Board doing pos- factor in his death. A possibly could have been a Gaffney B., I. A. 129 Mont. sibility required. is all that v. 394, 397, P.2d 256.” number III was as follows:
The court’s conclusion
law
required
prove
her
with mathemati
“Claimant
not
case
certainty.
Cook,
Weakley
cal
A of the evidence discloses that the trial careful review findings supported by fact are the evidence. court’s *4 Little, excerpts testimony from of Dr. Amos R. Pertinent Jr., are as follows:
“Q. contagious? A. polio Is infectious and Yes.
“Q. doing hard, manual in person labor the hot Could
sun, spending long trucks climbing his feet on and off hours on exposed matter, great exertion, and under and human waste to exposed A. contract disease if the virus? he was to ‘yes’. answer to that
“Q. might fatigue In other words, excessive and overwork polio, is, they be factors incidence of could be? that # # They A. could be. “Q. Does the sewage virus contaminated water and exist * * * Presumably. A. water?
“Q. flies, especially words, it be that other could blow flies, carry anything can and infect that this virus food may they come if the virus? A. As contact with * * * know, possibility. far I is a as there ‘‘Q. however, exposure that Mr. possible, It is Hines having garbage if this virus was around in these trucks sewer, storm he contracted disease from that ex- and A. posure? possible.” It’s Eugene
Dr. J. testified follows: Sherba as ‘‘Q. contagious and A. Polio an disease? I infectious say it is. would
‘‘Q. And in identified the volume here which has been as Encyclopedia Surgery, and I of Medicine which have ob- Library, referring from the Montana Law tained State — X, incidentally trying on I’m not page volume expert trying impeach any- an pose polio, on or am I might meager I thing you say. My knowledge have obtained contributing I read here: ‘Also volume and susceptibility exposure physical fatigue, to cold other are seem physiological some cases to have disturbances A. entry door for or activation the virus.’ If I opened the fatigued get polio, I polio, am immune to I can be and won’t extremely fatigued, I am not possibly if immune and become possibility. there’s susceptible? your might ques- A. Is
‘‘Q. You be more tion, susceptible? I more am
“ that. A. answer I can’t Q. might susceptible? be more You that. can answer I think “Q. Nobody knows? A. don’t we fatigue and over- ‘‘Q. say, that excessive however, Could we I think A. polio? in incidence of the might work factors important very a factor. I don’t think it’s possible, it’s ‘The “Q. virus 922 the statement is made that page Also on sewage a number cities from the been isolated has probably is separated areas.’ That widely flies in collected correct, A. it not? Yes. vomiting, profuse
“Q. headaches, nausea, fever, sweat- Are skin, perhaps constipation, pain ing, flushed diarrhea or the extremities, symptoms of the muscles all weakness of of the they A. Yes, disease? can be. a exposure the
“Q. greater person a Is this fact that polio virus, greater person the possibility say in contracting general A. this the disease? I would probably a immune.” person true if not at Rocky Laboratory L. Larson Mountain
Dr. Carl Board, as follows: testified in behalf Hamilton, Montana, “Q. Industrial brought from Hamilton You were here Board? A. Yes. Accident you testified
“Q. matter in Hamilton about which this A. you in of the sewers? We find where found virus one that have in the sewers, outlets we virus all of the six town, you see, test all the sewers before city are located so we * * * empty sewage disposal plant they into ‘‘ you say appears that Q. about this statement What would sewage of virus has isolated from the page on 922: ‘The been separated widely a from flies collected number of cities you say good A. That’s about that? areas.’ What would agree I’ll with it. statement. say probably you with what
“Q. fit Doesn’t transmitted, be trans- this virus can maybe can be mitted, by way flies? A. long ‘maybe’ There’s a between ‘Yes, it can be.’
“Q. possible It’s that it A. possible, can? It’s there are of things possible.” lot that are
Dr. Larson respect also testified in to the with connection the employment as follows:
“There is during some hard evidence that the time one work has virusemia will tend to localize the virus the central *6 system nervous paralysis.” and cause produced Defendant from the Montana State Board of Health, Fieldsteel, A. Dr. Howard a at virologist, present time a Montana; director of the laboratory virus he testified general study that is virology diseases, a viruses, of virus propagation virus, methods spread of of methods of the and protecting against virus methods of virus disease. His testimony as follows: was
“Q. your experience much How work and has been with poliomyelitis virus? A. Well, during period post my fellowship, all of my poliomyelitis. work concerned with [*] m # “Q. polio Is the cause of Yes, known? A. is polio caused * * *
aby virus, or polio caused one of three viruses.
“Q. you find, What did anything? if A. We found that the spinal type-one brain and polio cord contained virus. “Q. referring to appears page And a statement which on 922 of that volume, you you I will agree ask if with this state- ment: contributing susceptibility fatigue, ‘Also exposure are cold, physical physiological and other and disturbances opened entry some cases seem to have the door for exception activation of A. I the virus.’ 'would take that extremely statement. think it’s misleading I for reason: from out, what we from studies it know carried has been fatigue, exposure things shown contribute, that to cold other susceptibility; they only but not contribute after an individual has body beyond taken the virus into and is the incubation signs they polio, con- showing where the individual stage prior disease, but not about a more severe bringing tribute to It not increase taking the virus. does to the individual’s " * * susceptibility, no. fecal matter “Q. large quantities of If there were some trucks diapers clothing garbage adults’ childrens’ flies and large numbers of away 50 to 100 feet which attracted on food that landed a of 100 feet those flies flew distance have the virus could eating, possible a is it person was * * * all, that there A. must assume first of carried? You been virus If there fecal material. present was virus for the flies material, possible present in fecal it would materials. pick up carry it to some other might contract the “Q. eating a that food person And then disease, again, Yes, might person A. contract the disease? large you present. of virus quantities to assume there are quantities. These only minute You can’t assume there are quantity virus as things only large occur when there epidemic periods.
“Q. epidemic Talking large quantities about virus and fact, greater doctor, you periods, I ask if this will *7 possi- exposure polio virus, greater person to of the disease ? A. I would think bility contracting person of that so, yes.”
Many in of of this are line with the decision decisions court compensable Sykes held v. Re- trial Neurosis was court. 157; 22 Co., 239, Mont. P.2d Best London public 94 v. Coal 656; Co., 332, 47 P.2d sunstroke & Acc. 100 Mont. Guarantee Co., Forks Portland Cement in Birdwell v. Three was involved compensable heart disease was found 483, 43; Mont. 40 P.2d 98 570, Mont. 280 P.2d General-Shea-Morrison, 128 v. Levo ac- to resulted from 1086; found Parkinson’s disease 26 Canning Co., 347, 95 Bozeman Mont. in Moffett v. cident 256; Gaffney B., 394, A. Mont. 287 P.2d v. I. 129 973, P.2d act Williams Brown- meningitis by v. was held covered 596
field-Canty Carpet Co.,
364,
95 Mont.
980;
26 P.2d
diseased
kidneys were
B.,
Mont, 256,
Tweedie
A.
101
involved
v. I.
The last subject case in which this received consideration court Young Liberty the case of National Insurance v. Co., 458, 138 886, 16, 1960, Mont. P.2d 357 decided December wherein this court said:
“ ** * There can meaning be an industrial accident within the of Compensation though the Workmen’s Act no even there is accident in ordinary sense, e., whereby i. an act of violence an employee object injured by struck an or fall. Ex- posure resulting injury to heat cold employee an an industrial compensable accident which is under laws. our Ryan v. Industrial Accident 45 143, 100 Mont. P.2d 775; Birdwell v. Three Forks Co., Portland Cement Mont. 43; 40 P.2d Co., Nicholson Min. Roundup supra, v. Coal Also, Mont. 257 P. physical 270. exertion by an em- ployee which to, injury contributes employee or causes to the has held been to be an industrial accident. Rathbun v. Taber Tank Inc., Lines, 129 Mont. 966; Murphy 283 P.2d Ana- conda 321 P.2d 1094.
“Respondent’s disability being exposure direct result his extremely physical point cold weather and exertion to a exhaustion, it injured is manifest that he result as the an industrial accident. being question
“There no February 13, the incident of respondent’s employment, was within the course of only remaining point appellants’ third contention which respondent’s disability needs discussion is whether arose out employment. “An employment industrial accident arises out of a worker’s whenever it being exposed by results from the worker his em- ployment greater degree a risk than people subjected. community generally Wiggins of are v. Indus-
597 L.R.A.1918F, P. 170 Board, trial Accident Mont. 932. em- respondent’s particular under which
“The circumstances 13, 1953, sub- February on did ployment being pursued was injured by weather ject the cold greater being risk him to therefore, it community general; people the than were employ- disability out his fairly said that his arose can be ment.” 601, 341 Lumber 136 Mont. Richardson v. J. Neils court, Wiggins v. Ind. Acc. 900, 904, quoting from
P.2d 170 P. said: “ * * ‘* by itself If, employment nature of the reason of the particular employment the the conditions under which exposed peculiar pursued, hazard to the workman is circumstances, results injury under the employment injury arises out of the reason of such exposure, employment, or then may be said [*] * * [that] fairly that the work- exposed by employment his more than man must have been generally community people the normal risk to of the ” subject.’ are Hospital, 126 In Industrial Commission v. Corwin Colo. working 135, it held that nurse had 250 P.2d who been exclusively polio hospital polio close contact with wards overtired, her to patients under conditions which caused job, herself after two months on polio contracted disability “accidentally sustained” within resulting Act, compensable. Compensation and was the Workmen’s trial and the remand Judgment court was reversed cause reinstate the of the commission. ed directions to award with Journal, 163. p. also See Vol. NACCA Law respect record and the authorities A review the death of claimant’s husband was question of whether or not the employment, we find caused or contributed properly properly answered the affirmative and trial court *9 598 compensation
awarded to judgment appealed claimant. The from is affirmed.
MR. JUSTICES BOTTOMLY and ADAIR concur. MR. JUSTICE CASTLES:
I having dissent. Not opportunity express my had the majority opinion views filed, when the I wish to do so now. Legislative The 1961 Session is in meeting, now this opinion majority of this legislative court has taken over by amending duties statutes. statute, 1947, The R.C.M. § 92-418, specifically excludes “contraction of disease” from compensation workmen’s by specific definition. How the ma- jority ignore plain, legis- of this court can unequivocal such beyond lative is comprehension. definition this If writer’s done, why be legislative this can one wonders session is necessary. language of two sections the Montana Workmen’s
Compensation Act is
in
involved
case.
R.C.M.
92-
§
part:
in
provides,
*
* *
* * *
“Every employer
shall be liable
an employee
* * *
injury
shall
arising
who
an
out
receive
in the course
*' *
Emphasis supplied.
of his employment
as
“Injury”,
Compensation
used
the Workmen’s
Act, is
defined
follows
as
section 92-418:
“
‘injured’
only
‘Injury’
injury
an
resulting
refers
event,
distinguished
from
fortuitous
as
some
contrac-
Emphasis supplied.
tion
disease.”
recognized
Compensation
It
the Workmen’s
Act
liberally
of the
to be
construed
favor
workman. R.C.M.
92-838; Murphy
Co.,
v.
Anaconda
321
§
However,
may
plain
not disregard
pro-
P.2d 1094.
this court
guise
interpretation.
of liberal
the statute under the
visions of
Magelo
rel.
Industrial Accident
102
State ex.
v.
Mont.
Geary
785;
Copper
Anaconda
Min. 59 P.2d
express language of section
From the
485,
This court *10 aggravated or the has been results of disease where disease injury an and in by arising out the course the accelerated Co., Roundup Min. 79 Mont. employment. Nicholson v. Coal Board, 93 358, 270; Murphy Industrial Accident 257 P. v. Gaffney 161, 705; P.2d Industrial Accident Mont. v. In- 394, 256; Young Liberty
129
National
Mont.
287 P.2d
v.
458,
However, this is much
surance
138 Mont.
Claimant has court where However, covery granted for conditions of heart disease. “injury” recognized there within the these was an cases statutory language caused or the which was contributed to Lines, Inc., Tank employment. Rathbun v. Taber 966, unexpected fail- held that an internal heart 283 P.2d stress and strain constituted a “fortuitous event” ure from “injury” statutory language. an within the therefore Company, 133 321 Murphy v. Anaconda Mont. P.2d usual stress held that heart failure which resulted the employee’s “injury” an the constituted and strain of work However, comparable are these cases not within statute. in the instant ease. to the fact situation 600
Claimant, majority opinion, and the has cited decisions of jurisdictions recovery other where was allowed cases in- volving poliomyelitis. the disease of Some of these decisions an compensation injury arising allowed out where of and in employment the course of the polio- caused the contraction of myelitis. In none of these cases was there involved statute similar the Montana statute. Claimant has stressed the Cali- Angeles County fornia of Los decision Industrial Accident Comm., Cal.App.2d 69, compen- 56 P.2d which allowed sation a nurse working hospital who was where there poliomyelitis present. case, were active cases of In that there was also much evidence of existence the disease among working and nurses hospital. However, doctors subject statutes on California are much different than California, (West’s those of Montana. Ann. Labor Cal. Code, et seq.) compensation “injury” an allowed for § arising employment, out of the course of the at the Angeles time County “injury” the Los case was decided defined as follows the California statutes: “The term ‘in- jury,’ act, any injury in this used shall include or disease * * arising employment Emphasis supplied. out p. 3(4), Cal.Stats.1919 ch. 911. is evident So it § “injury” expressly defining California statutes include con- definition, whereas, traction of disease within the the contrac- is expressly tion of excluded from definition *11 “injury” in the statute. For reason, any Montana this Califor- subject nia application on the no cases Montana. The majority same is true of Colorado the opinion where relies on Hospital, Industrial Commission v. .Corwin 126 Colo. 250 135. P.2d perceive clearly
We can of no case which would more fall language distinguished “as within the exclusion of the from holding of than the case. In the contraction disease” instant compensable, statutory language being the is claim to judicial abrogated nothing gross legisla- result and the is
601 is clear language section 92-418 From the of tion. the contraction not intend to include
legislature did This Act. Compensation ambit of the Workmen’s within the passage, by the recent further evidenced legislative intent is by legislature Act the Occupational Disease the 92-1368. 92-1301 to R.C.M. is now §§ codified of certain compensation contraction authorizes for the This act a there is direct causal specified occupational diseases where the employment the contraction of the connection between of the not one poliomyelitis It be noted that disease. should al- compensation occupational for which specified diseases the passed Act Occupational Disease When this lowed. for certain diseases compensation intended to Legislature allow realized employment must have by the which were caused scope of the not, time, the at that within that diseases were Legislature obviously did Compensation Act. The Workmen’s infectious, contagious, type contact intend to include the not coverage Montana the of the poliomyelitis within disease of language section plain Act the Compensation Workmen’s 92-418. compensation, denying reason for addition to above proof her burden of has also failed sustain
the claimant evidence, proving, preponderance a causal connec- the disease. employment and the contraction of tion between the Co., 85 Mont. County Refining Landeen v. Toole See Copper Min. 615; P. Kerns Anaconda P. 563. between attempting connection to show causal
Claimant because of the disease and the contraction employment employ- nature deceased’s work. nature of the in the being outside evidence, ment, necessitated his lunches at ate that the deceased claimed hot sun. It was storm-sewer jungles near hobo city shops which were in the area. flies abounded claimed outlet. It was also sometimes garbage trucks some evidence There was *12 contained human matter, fecal they and that parked were the shop during area the lunch hour.
Concerning connection, testimony the causal four by doctors was offered into evidence. The two doctors called the claimant as attending witnesses both at the physicians were time of deceased’s death. The two as doctors called witnesses for the Board had not attending physicians quali- been but were fied as having special knowledge concerning polio- the disease myelitis. All of the doctors poliomyelitis testified that contact, epidemic-type primary of disease and that the method of contracting through it is person-to-person All of contact. agreed these witnesses that the exist in ex- virus could human They fatigue creta. testified that not a factor which would person make a susceptible more contraction of the disease. testimony concerning flies they was to the effect that have not been considered much epidemics they of a factor during major have also not been considered a source from which significant disease could It be contracted. that when claim- ant’s hypothetical were question witnesses tendered included the surroundings conditions and of the deceased’s employment, and were asked if this contributed to the death they testify. of deceased would not so One of these doctors say where, how, testified that he not could or when the de- ceased possible contracted the and that it disease the de- going job ceased contracted at home or or from job. by well as on the The other doctor called the claimant testified, concerning this hypothetical question, same possibly factors could be related to the contraction probably they disease the deceased but not. were The testi- mony of the doctors was, who testified for the Board in es- sence, been likely deceased would have more to have in his people, contracted disease contact with other either attended, at at home or a funeral which he had than to contracted the because of employ- the conditions of his ment. proving burden of not sustained her
The claimant has employment and the contraction causal between the connection of the disease the above-evidence. *13 the district court reasons, judgment of foregoing
For the the Industrial Accident and order of should be reversed reinstated. denying compensation, should be JUSTICE HARRISON: MR. CHIEF opinion Mr. Castles. dissenting I of Justice concur COMPANY, Delaware Cor- PIPE LINE YELLOWSTONE Cross-Appellant, Respondent, and poration, Plaintiff and v. EQUALIZATION Mon
STATE BOARD OF of the State of F. and E. Byrne, members J. J. Winters J. Reid, W. as tana; constituting qualiz Board of E and said The State of County, Montana; Yellowstone ation of State of political ; of Montana, of Montana subdivision State Thompson County, of Yellowstone C. O. as Treasurer said and T. A. Yellow Montana; Assessor of said Cothron as Appellants, and County, Montana, Defendants stone Cross-Respondents. and Corpora- COMPANY, a Delaware LINE
OIL PIPE BASIN Cross-Appellant, Respondent, tion, Plaintiff EQUALIZATION of the State of Mon BOARD OF STATE E. members F. J. Byrne, as J. J. Reid, W. Winters tana; Eq constituting State Board said ualiz County, Montana; Yellowstone State ation political ; of Montana Montana, State subdivision Thompson County, Yellowstone C. O. as Treasurer said Yellow- A. of said and T. Assessor Montana; Cothron