Howard v. Tex. Owy. M.D. Co. , 62 Idaho 707 ( 1941 )

The cause of action upon which appellants seek to recover accrued prior, to the enactment of the Occupational Disease Compensation Law (Chapter 161, 1939 Session Laws).

There is only one question necessary to be determined in the above entitled action, namely, is the contracting of silicosis by appellants an occupational disease incident to or the result of the particular employment in which appellants were engaged, or is it a personal injury by accident arising out of and in the course of their employment. Each of appellants became afflicted with silicosis, or their affliction was accelerated, as a result of the conditions created by the employer during the period of their employment. The Industrial Accident Board concluded that it was an occupational disease and, therefore, denied appellants relief.

If appellants contracted the disease while engaged in occupational employment, it was not a personal injury by accident arising out of and in the course of their employment. Conversely, if the disease, silicosis, was not contracted while engaged in occupational employment, the injury sustained was the result of an accident arising out of and in the course of their employment and is compensable. The Board's findings of fact amply support the conclusion that it was an accident which resulted in the injury, silicosis, and arose out of and in the course of appellants' employment.

Clearly, under the authorities hereafter cited, when applied to the facts of this case, a reversal of the Board's order denying compensation to appellant is imperative. Sec.46-501-504, I. C. A.; Beaver v. Morrison-Knudsen Co., 55 Idaho 274,41 P.2d 605; McNeely v. Carolina Asbestos Co., (N.C.)174 S.E. 509; Seattle Can Co. v. Department of Labor Industries, 147 Wash. 303, 264 P. 739; Bybee v. Ida. Eq.,57 Idaho 396, 65 P.2d 730; Ramsay v. Sullivan, 51 Idaho 366,6 P.2d 856; Reinoehl v. Hammacher Co., 51 Idaho 359, 6 P.2d 860.

The same principle of law applies to the facts of this case as was announced in Brown v. St. Joseph Lead Co., 60 Idaho 49,87 P.2d 1000, and in In re Nixon, 60 Idaho 64, 87 P.2d 1007. The only difference in the facts being in the degree of negligence on the part of the employer in failing to protect its employees from contracting the disease, silicosis, and in furnishing a safe place in which to work and to supply them with known safety devices to protect them from constantly inhaling, while working, dust carrying silicosis particles.

Injury caused by conditions which science and industry have learned to control and eliminate cannot be classed as an occupational disease. Brown v. St. Joseph Lead Co., supra; Inre Nixon, supra.

The judgment should be reversed.