Dondeneau v. State Industrial Accident Commission

COSHOW,. J. We commend the attorneys far the litigants in this appeal for reducing the issue to one controversy. This method of presenting the case relieves the court of a large amount of time often occupied in searching authorities and considering questions concerning which no dispute should arise. The *360 statement of fact upon which, the action was tried is brief and included only matters necessary to be considered in determining the one legal question involved. With commendable candor the learned Attorney General in his well-prepared statement and brief specifically states that the claim of the respondent was presented to the appellant within the time provided by law, consequently the only question is whether the injury for which the claimant seeks compensation was the result of accidental means. The authorities are in irreconcilable conflict regarding the liability of an insurer against accidents. This subject matter is discussed exhaustively in Caldwell v. Travelers’ Ins. Co., 305 Mo. 619 (267 S. W. 907, 39 A. L. R. 56), decided November 5, 1924. Appellant relies confidently upon the opinion in that case. Because it discusses the subject at great length and refers to a large number of cases representing different conclusions reached upon similar facts in different jurisdictions, it is not deemed necessary to cite or discuss at length more than a very few authorities. In the Caldwell case the court states the different constructions of accident insurance in the following language : “There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance,' slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected; or unforeseen. “The other line of eases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of *361 mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death.” 305 Mo. 625 (267 S. W. 908.) Oregon is committed to the first line of cases — that is in order for the insured to recover under the ordinary policy of accident insurance it is necessary for the injury to have been caused by accidental means; it is not sufficient that the result only should have been accidental: Kendall v. Travelers’ Protective Association, 87 Or. 179 (169 Pac. 751). An illustration of the liability of an insurer against accidental injury as construed in the Kendall case may be aptly made thus: A person accidentally scratches his hand on his tie pin which unknowing to him protrudes beyond his tie. The scratch occurs by chance. It is a mishap. In itself it is trivial but owing to some unforeseen and unknown circumstances blood-poisoning results and death follows. The insurer would be liable under the policy. Another man intentionally uses his tie pin to remove a sliver in his hand or to open a blister and blood-poisoning unexpectedly results causing the insured’s death. His beneficiaries cannot recover under the policy because he intentionally used the pin in the way and manner he did. The language used in the policy fixing the liability of the insurer in the Caldwell case is as follows: “The policy holder is insured from bodily injuries * * through external, violent and accidental means.” In that case, as in the instant case, the sole question was what is meant by accidental means.. The injuries for which compensation is awarded under our statute is defined as follows: “ * * a personal injury by accident arising out of and in the course of his employment caused by violent or external means, * # . ” Or. L., § 6626. *362 There is no donbt that the injury from which the claimant in the instant case suffered was both external and violent. For the purpose of this opinion only, but not so deciding, we assume that the language of our statute requires the same construction as the language of the policy in the Caldwell and Kendall cases. There can be no doubt that the result of respondent’s effort was unexpected and unusual. The attorney for defendant argues in his brief thus: “It is very unlikely that a normal eye would have become so diseased; this conclusion being sustained by the fact that his right eye was in no way affected by the heat, smoke and overexertion. # * We know from experience that a normal eye would probably not be affected in such a manner by heat, smoke and overexertion.” But we could as applicably assume that the injured eye received an unusually strong blast of some gas, aggravated by ashes or cinders and intense heat, as we can entertain the suggestion of the learned attorney general as to the defective condition of the eye. It was said by this court in Iwanicki v. State Industrial Accident Commission, 104 Or. 650, 664 (205 Pac. 990, 29 A. L. R. 682): “No one disputes that if an accident happens within the true meaning of the term, which brings on a subsequent disease, the ailment may be counted as a part of the injury, but the initiative must be found in the suddenness and unexpectedness of what is termed ‘accident.’ ” Stipulation YII of the agreed statement of facts is as follows: ' “It is further stipulated and agréed that while plaintiff was so employed and during the fire he was almost continually in contact with the heat and smoke thereof which set up a condition of glaucoma in his *363 left eye, this condition being- induced by the irritation from such heat, smoke and overexertion.” It cannot be denied that the respondent was injured in the course of his employment. He was required as an employee of the company to fight the fire as well as by the law of the state. The fire itself was an unlooked for event. It was a mishap, an accident. The respondent voluntarily entered into the work of fighting- the fire, but he did not intentionally admit the poisonous gas and smoke into his eye. The fact that the injury was caused by smoke or gas together with superexertion does not change the cause of the injury. It is as much an accident as though a live cinder had been received into the eye and the eye burned, resulting in the loss of sight. The means of the injury was unexpected and unusual. So rare, so unexpected was this injury that the learned attorney general seeks to account for it as being due to an inherent defective eye. It would be hard to conceive of any injury better answering the definition of “accident.” If the respondent had slipped and fallen and thereby sustained an injury, it would not be denied that such injury was caused by accidental means. But the same argument could be advanced that he went voluntarily to fight the fire. The accident would have occurred while fighting the fire. By voluntarily fighting the fire he encountered many unusual risks. The unusual nature of the injury seems to have been the controlling reason for denying compensation to the respondent by the appellant. It would seem that the very unusualness of the means, as well as of the result, tend to magnify the accidental nature of the means as well as the result of the injury. The cause as well as the effect is an extremely rare accident. Events are called accidents because they are not an *364 tieipated, not expected, unusual and out of the ordinary. But it is argued because this occurrence is extremely rare it was due to some inherent weakness of the eye and therefore it is not an accident. “Where the effect is not the natural and probable consequence of the means which produce it — an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of the means, or an effect which the actor did not intend to produce, and which he cannot be charged with a design of producing — it is produced by accidental means.” 1 C. J. 427, § 73, and long list of authorities cited under note 45. In the instant case the injured eye was not the natural or probable consequence of respondent’s conduct; the injury does not ordinarily follow such efforts and could not be reasonably anticipated; the respondent did not intend to produce the effect and is not charged with a design of producing such effect. He suffered the injury, therefore, by accidental means. To hold otherwise would be to defeat the prime purpose of enacting the statute as expressed in its preamble. It is further argued that inasmuch as the respondent cannot fix the exact date of the injury to the eye it is therefore not accidental. Such a construction would be too strict. Injuries are frequently suffered accidentally resulting seriously when the victim cannot name the exact time of receiving the injury. Hernia is frequently suffered by a mischance, mishap or accident when the victim cannot recall the exact time when he received the injury. The respondent could have received the injury to the eye during any one of the four days of the fire and yet not be able to tell the exact time the injury was received. The injury is no less the result of acci *365 dental means on that account. A man fighting’ fire during four days may have stumbled over an obstruction every day many times and in one of his falls could have suffered a rupture. In his concentration upon his work, his supreme efforts to control the fire, he would not know when he suffered the hernia. It would be no less an accident on that account. So in the instant case the fact that the respondent cannot mention any particular time during the four days he was so strenuously working to serve his employer and other persons’ property when the smoke entered the eye in. such quantity and under such conditions as to permanently destroy the sight thereof does not cause the means of the injury to be any less accidental. The smoke and poisonous gas were not admitted into his eye purposely. He did not anticipate that gas and smoke would enter Ms eye in such quantity as to permanently injure it. It was very unusual for it to have done so. The agreed statement of facts admits that the sight of the eye was lost as a result of the smoke and overheating of the respondent. To deny him compensation under such circumstances is to construe the Workmen’s Compensation Act with extreme strictness instead of liberally as it should be: Stark v. State Industrial Accident Commission, 103 Or. 80, 87 (204 Pac. 151); United Paperboard Company v. Lewis, 65 Ind. App. 356, 361 (117 N. E. 276, 277). In page 360 the court in the last case cited says: “On the other hand it is generally accepted that a disease which is not the ordinary result of an employee’s work, reasonably to be anticipated as a result of pursuing the same, but contracted as a direct result of unusual circumstances connected therewith, is to be considered an injury by accident, and comes within the provisions of acts providing for compen *366 sation for personal injury so caused.” (Citing a large number of authorities.) First Honnold on Workmen’s Compensation, 279, 280, Section 85, lays down the rule thus: “It (accident) is something capable of being assigned to a particular time and place of which notice can be given. This has been held, however, not to mean capable of being assigned to some particular moment or hour of time. It follows that there is no ‘injury by accident’ within a Workmen’s Compensation Act, when no specific time or occasion can be fixed upon as the time an alleged accident occurred.” Literally construed it would follow that if the respondent had worked but one day or half a day and received the injury, he could recover. But inasmuch as he worked almost continuously four days and during that period received the injury, he cannot recover because he cannot specify the exact day or hour that he received the injury to his eye. We believe the better rule, the rule in keeping with the spirit of the Workmen’s Compensation Act, to have been stated by Professor Francis Bohlen of the University of Pennsylvania Law School in an article on Personal Injury by Accident as follows: “The term ‘by accident’ has been consistently construed to include two different ideas: the first is that of unexpectedness; the second, that of an injury sustained on some definite occasion, the date of which can be fixed with reasonable certainty. The first idea would be as well conveyed by the word ‘accidentally’ or by any phrase or phrases in which unforeseen harm is sharply contrasted with harm intended to result. The latter idea, it is submitted, is not necessarily included in the term ‘accidental’ or ‘accidentally’; such words, especially if the phrases employed in such legislation are to be construed in accordance with the popular meaning of the terms used, do not *367 appear necessarily to indicate the existence of an accident, but would seem to relate solely to the injury being neither intended nor expected.” 25 Harvard Law Review 337. In the instant case the “occasion” was the forest fire. The date was the four days in which respondent was at work. The date is reasonably certain. We are of the opinion that time in relation to an accident is relative. In the instant case the respondent was engaged for four days almost continuously in combating the progress of the fire. He was on duty in this behalf for 36 hours without relief. All his time was occupied and may be properly referred to as one period. In this one period he suffered the injury. We think that this satisfies the requirement that the occurrence to be accidental must refer to a definite period of time. Other helpful cases are: American Accident Co. v. Reigart, 94 Ky. 551 (23 S. W. 191, 4 Am. St. Rep. 374, 21 L. R. A. 651); McGlinchey v. Fidelity & Casualty Co., 80 Me. 251, (14 Atl. 13, 6 Am. St. Rep. 190); Raina v. Standard Gaslight Co. of N. Y., 193 App. Div. 54 (183 N. Y. Supp. 264); Yates v. South Kirby, F. & H. Collieries, Ltd., 2 K. B., 3 N. C. C. A. 538; Riley v. Mason Motor Car Co., 199 Mich. 233 (165 N. W. 745); Tintic Milling Co. v. Industrial Commission of Utah, 60 Utah, 14 (206 Pac. 278, 23 A. L. R. 325); Schneider on Workmen’s Compensation Law, 399-402. The case of Iwanicki v. State Ind. Acc. Com., 104 Or. 650 (205 Pac. 990, 29 A. L. R. 682), is not in point. The question involved there was whether or not lead poisoning caused by a workman holding tacks having a lead coating in his mouth while at work was an accident. Lead poisoning is an occupational disease. It is an expected result from continuous con *368 tact with lead, especially where the contact is of snch a nature as to cause the lead to be absorbed into the system. The case at bar is not unlike in principle Hood v. Maryland Casualty Co., 206 Mass. 223 (92 N. E. 329, 138 Am. St. Rep. 379, 30 L. R. A. (N. S.) 1192), where the insured contracted glanders through handling diseased horses. He was allowed to recover because he did not know the horses were diseased. Ho was therefore injured by accidental means. We cannot conceive that if the insured had been handling horses for four days and could not tell the particular day on which he became infected that he would have been denied a judgment. Other cases similar in substance are United States Casualty Co. v. Griffis, 186 Ind. 126 (114 N. E. 83, L. R. A. 1917F, 481, involving death from eating tainted or poisonous mushrooms. Recovery was permitted because the insured did not intentionally eat poisonous mushrooms. When he ate them he believed them to be wholesome. In eating them, however, he assumed the risk. So in the instant case the respondent did not intentionally admit into his eye smoke in such quantity and under such circumstances as to permanently injure his eye. He did not intentionally overexert himself. He was doing his duty, desperately trying to prevent the destruction of his employer’s and other persons’ property. The injury was unexpected and unusual. It was therefore the result of accidental means. Sullivan v. Modern Brotherhood of America, 167 Mich. 524 (133 N. W. 486, Ann. Cas. 1913A, 1116 42 L. R. A. (N. S.) 140). Insured unintentionally splashed water in her eye while doing the family washing. She rubbed her eye with her finger. Gonorrheal infection set in, and she lost her eye. She re *369 covered under her policy. She doubtless intentionally rubbed her eye. The water was accidentally splashed into her eye. Whether the infection was caused by the splashing of the water or the rubbing of her eye with her finger is not known. So in the instant case the respondent was intentionally fighting the fire, but he had no intention of receiving the injury he sustained while doing so. The injury was received accidentally.- Other instructive cases are: Gallagher v. Fidelity & Casualty Co., 163 App. Div. 556 (148 N. Y. Supp. 1016), affirmed 221 N. Y. 664 (117 N. E. 1067), without opinion; Lewis v. Iowa State Traveling Men’s Assn., 248 Fed. 602; Elsey v. Fidelity & Casualty Co., 187 Ind. 447 (120 N. E. 42, L. R. A. 1918F, 646).' The cases might be multiplied almost indefinitely. The authorities are in irreconcilable conflict. Different jurisdictions have reached opposte results upon apparently identical facts. Giving to the Workmen’s Compensation Act of this state a liberal construction as this court has held should be done, we have no hesitancy in affirming the judgment of the Circuit Court. It is so ordered. Aeeirmed. Burnett, J., dissents. Band, J., did not participate in this opinion.