Johnson v. La Bolt Oil Co. , 62 S.D. 391 ( 1934 )

I agree that respondent was engaged in the course of his employment at the time he suffered the injury involved in this case. I believe also that, according to the better view, the respondent in this case suffered a personal injury "by accident" within the meaning of section 9440, R.C. 1919, notwithstanding the fact that to hold that there was an injury by accident in this case is absolutely to depart from the pronouncement of this court in the case of Frank v. C., M. St. P. Ry. Co. (1926) 49 S.D. 312, 207 N.W. 89.

The language of our Workmen's Compensation Law providing for compensation where personal injury or death occurs "by accident arising out of and in the course of the employment" is identical with the English acts of 1897 and 1906. It was the view of the earlier English cases that to constitute an injury "by accident" it was not enough that the injury itself was unexpected, but was essential that the cause of the injury be some unforeseen and unusual operation, act, or condition. That is also the view held by a few jurisdictions in the United States under comparable acts. See Stombaugh v. Peerless Wire Fence Co. (1917) 198 Mich. 445, 164 N.W. 537; Jakub v. Industrial Commission (1919) 288 Ill. 87, 123 N.E. 263; Martin v. State Compensation Commr.(1929)107 W. Va. 583, 149 S.E. 824. That view has been departed from in England, however, since the cases of Fenton v. Thorley Co., Ltd., [1903] A.C. 443, 5 W.C.C. 1, and Clover, Clayton Co., Ltd., v. Hughes, [1910] A.C. 242, 3 B.W.C.C. 275.

"* * * While the English cases have consistently regarded the phrase `by accident' as indicating something unexpected, the earlier and later cases differ as to whether the cause of the injury must be some unforeseen and unusual operation of the business or condition of the plant, or whether it was enough that the injury itself was unexpected.

"The earlier cases required that there must have been something unusual and unexpected in the external influences to which the sufferer was subjected in the course of his employment. No injury was regarded as sustained by accident where the workman was harmed while doing the very work he was employed to do under conditions usual thereto. No compensation was awarded unless there was some departure from the ordinary operation of the business or some unusual condition of the plant; it was not enough that, because of some peculiar physical condition of the workman, permanent or transitory, known to him or not known to him, the work, which he did not expect to injure him, in fact proved harmful; there must be some factor external to the claimant's physical condition.

"The courts, however, were prone to regard rather minute departures from the ordinary course of the employment as being sufficient to amount to an unexpected external event.

"It was also held that the departure from the usual operation of the business might be some unusual act of the servant himself if done in the prosecution of the business, and this act might be some careless act of his own — an unintentional slip, or an act intentionally done but whose results, owing to some miscalculation, were not foreseen or designed. It is evident that there is much to be said for this interpretation; any other view would bar a stupid or ignorant servant from compensation where he had through some slight miscalculation subjected himself to injury which a more skilled and prudent workman would have avoided.

"Since the case of Fenton v. Thorley, nothing more is required than that the harm that the plaintiff has sustained shall be unexpected. It is no longer required that the causes external to the plaintiff himself, which contribute to bring about his injury, shall be in any way unusual; it is enough that the causes, themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected. The test as to whether an injury is unexpected and so if received on a single occasion occurs `by accident' is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing. What was actually probable or even inevitable because of circumstances unknown to the sufferer is even more unimportant. The test is purely subjective to the injured workman." 25 Harv. Law Rev. 328 at 339.

And it remains distinctly the minority view in the United States. See Patrick v. Ham Co. (1921) 119 Me. 510, 111 A. 912, 13 A.L.R. 427; Guay v. Brown Co. (1928) 83 N.H. 392, 142 A. 697, 60 A.L.R. 1284.

It is possible that the Frank Case above mentioned might have been decided entirely upon the ground that the damage to the claimant there was disease as distinguished from injury. Nevertheless, in that case, whether absolutely essential to the decision thereof or not, this court definitely and deliberately adopted the minority view above mentioned as to the construction of the phrase "injury by accident," saying at page 317 of 49 S.D., 207 N.W. 89, 91: "Claimant was doing his work in the usual manner, as intended, without unusual strain or mishap. Before he can recover it must appear that some mishap, some untoward and unexpected event, occurred without design; that some accidental injury was suffered, traceable to a definite time, place, and cause. Matthiessen, Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, 120 N.E. 249; Taylor v. Swift Co., 114 Kan. 431, 219 P. 516; Kutschmar v. Briggs Mfg. Co., 197 Mich, 146, 163 N.W. 933, L.R.A. 1918B, 1133" — and this view was subsequently approved, either expressly or by necessary inference, in the cases of Bayer v C.B. Q.R. Co. (1928) 53 S.D. 166, 220 N.W. 459, and Moore v. Whipkey (1933) 62 S.D. 56, 251 N.W. 803.

The rule that we announced in the Frank Case with reference to "injury by accident" is held in but few jurisdictions, and, upon more thorough and careful consideration, I do not believe that it is supported by the better reason, and I am convinced that its adoption by this court in the Frank Case was ill-advised and that we should now recede from it. Upon these considerations, I concur in the affirmance herein.