It is admitted in this case and so found, that "the accident" occurred prior to the enactment of "The Occupational Disease Compensation Law" (chap. 161, 1939 Sess. Laws).
In Foote v. Hecla Mining Co., 62 Idaho 79, 108 P.2d 1030, this court said:
"Between the antipodes of silicosis as an occupational disease and its accidental contraction. . . . is a zone wherein, depending on the particular circumstanes of the case and accidental features, or the absence thereof, affliction from silicosis will or will not. . . . justify compensation." In the Foote case, authorities were cited illustrating the two extremes. *Page 723
To my mind, the case at bar is not within the doubtful or uncertain zone. It is just a plain silicosis case, and would now be clearly dealt with under the Occupational Disease Compensation Law. There is no evidence of "accident" in this case. It does not fall within the rule adopted in Beaver v.Morrison-Knudson Co., 55 Idaho 275, or the cases within that class. Brown v. St. Joseph Lead Co., 60 Idaho 49, 63, on rehearing; Hanson v. Ind. Sch. Dist. 11-J, 57 Idaho 297, 303; Inre Soran, 57 Idaho 483, 495; see, also, Hoffman v. ConsumersWater Co., 61 Idaho 226, 230, 231; Hillman v. Utah P. L. Co.,56 Idaho 67, 79.
It should be remembered that the decision in this case can not properly or legally turn on the question ofnegligence of the employer. This is not a common law action and the question of negligence is wholly immaterial. (Sec. 43-902, (I. C. A.) The Board heard the evidence and concluded that claimant, on whom the burden of proof rested, (Fackenthall v.Eggers P. S. Co., 62 Idaho 46, 108 P.2d 300) had not proven the occurrence of an "acdicent" within the purview of the compensation law.
As I read and understand the majority opinion, it is really predicated on the negligence of the employer, in not providing proper and adequate means of protection for the workmen and properly and adequately guarding against the inhalation of silica-laden dust.
For the latter reason, I am unable to concur in the conclusion reached.
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