In this case an opinion was filed on February 19, 1934. Thereafter a petition was filed by the respondents for a rehearing and a brief was filed in support thereof by attorneys for respondents, and also by Mr. Charles W. Beale, asamicus curiae. Later Mr. James E. Gyde, with leave of the court, filed rather an extensive brief as amicus curiae, as did also Mr. Ralph Nelson. After consideration of the petition and various briefs the court granted a rehearing. The case was thereafter orally argued. The court was not able to reach a final conclusion on the case prior to the expiration of the term of office of one of the sitting Justices, and an order was entered on January 23, 1935, resubmitting the case for consideration upon the record and briefs. The case was later assigned to the writer of this opinion.
The decisive question, which is urged both by the attorney for respondents and by the amici curiae, is that this court erred in holding that the employee was injured *Page 292 as the result of an "accident" arising out of and in the course of his employment. It is argued that in order to constitute an "accident" within the meaning of the Workmen's Compensation Law, the incident or occurrence, which it is claimed constituted the "accident . . . . must have arisen from an event capable of being identified with respect to time, place and circumstances."
It is contended that the statements contained in the opinion that "he (the employee) was more or less bothered by coughing, which became more frequent as time passed," and that the ailment from which he died was "brought on by a series of irritations," extending through three or four months, each year from 1928 to October, 1931, definitely place the occurrence or injury, from which the employee died, outside the category of "accidents" as defined by the statute. If counsel are correct in their contention as above stated, then of course the original opinion of this court is erroneous.
We are consequently confronted with the duty at this time of further analyzing the circumstances as disclosed by the record and interpreting them within the spirit and purpose of the statute. The original opinion contains a very complete statement of the facts of the case and we shall not repeat or add to that statement except in so far as some particular matter may seem pertinent or important to such discussion as we may advance, in passing upon the issue tendered by the petition and briefs.
The peculiar facts of this case afford only another illustration of the old rule, that each case must be determined upon its own set of facts and circumstances. It is true as contended by the respective counsel that there is apparent authority for the contention made by each side. We feel, however, that an analysis of the situation, as it arose in the lifetime of the employee and attended him to the time of the hearing before the board, tends to simplify the case and place it upon one side or the other of the dividing line between the legal rights of the respective parties. *Page 293
The decisive finding of the Industrial Accident Board upon which recovery was denied the employee is found in paragraph V of the board's findings of fact and is as follows:
"That no accident befell the Claimant while in the employ of the Defendant, Morrison-Knudsen Company; the re-occurrence of his tuberculosis being a gradual development, and there was no distinctive event or determinable unexpected happening during the course of his employment, nor any point or period of time marked by any unusual or distinctive event or occurrence."
As we read and understand the record before us, there is no evidence to support this finding. It is in reality more of a conclusion of law than finding of fact. We shall, however, make some observation hereinafter in regard to its correctness as a conclusion of law, "that no accident befell the Claimant."
Now, briefly considering the evidence, we think it indisputable that the employee had previously suffered from tuberculosis and that he had recovered to that state and condition where the lung lesions had healed and the tubercules were inclosed and in a dormant state; he had resumed his work and had been, and was, able to go about his business as any other workman could do. He had been carrying on his work with the Morrison-Knudsen Company from 1928 up to as late as October, 1931, without any apparent or serious difficulty except some spitting of blood and intermittent coughing between February and October, 1931.
The testimony of a tuberculosis expert and of claimant's physicians is all positive and affirmative, to the effect that inhaling silica dust during his period of employment with respondent was the direct and specific cause of reviving the latent tubercular condition of claimant's lungs and causing his breaking down from a fatal case of tuberculosis. The expert evidence on behalf of the employer was merely of a negative and doubting character. (See quotations in original opinion.) No one was able to testify as to the day or *Page 294 month, or specific time, when the real injury was received or the fatal draught of dust was inhaled. This affords the real basis of respondent's contention that the injury here received was not an "accident" within the meaning of the statute but was rather more comparable to an occupational disease. We have, however, the testimony of the physician (a tuberculosis expert) that,
"This case is an unusual case . . . . This man . . . . who could work in October . . . . came to me hopelessly ill six weeks later — that is an unusual thing. As a rule you see these men go out gradually. . . . . He got his tuberculosis with cavity in February, and in October he was far advanced and hopelessly ill, but he had that period of seven or eight months that he was not so sick but what he could work. The thing blew up, all to pieces at once."
There is no substantial contradiction of this evidence and it must be accepted as a correct statement of the time, certainty and nature of the injury. As to the cause of the injury, it seems clear from the evidence that the inhalation of silica dust while working for the Morrison-Knudsen Company from 1928 to October, 1931, revived a latent tuberculosis condition in the employee's lungs, which in 1931 suddenly "lightened up," or as the physician says, "blew up, all to pieces at once," some time between February and October, 1931, and resulted in his death.
Now this brings us to the practical and crucial inquiry: When did the injury or "accident," if such occur? Was it between February and October when he "blew up" and went "all to pieces at once," or was it during the intervening months between his employment in 1928 and October, 1931, while he was inhaling the "siliceous atmosphere" at the company's works at various and intermittent periods of work on the rock crusher and in the hot plant? It does not seem to us that it makes any legal or rational difference as to which way this question is answered. The cause and result are both definite and certain. Had the workman not had a previous active attack of tuberculosis he would *Page 295 not (in all reasonable probability, — say the experts) have suffered any ill results from inhalation of the silica dust. On the other hand, in the state of health he was in when he went to work for this company, still he would not likely have suffered any ill results had he not been working in the siliceous atmosphere. Had he worked only a few days, possibly a few weeks or months, and quit, he might not have suffered; but he remained on the job until he had to quit of a fatal case of tuberculosis. He could not anticipate or foresee the result,neither could his employer. Now who can in truth and fairness say this was not a compensable "accident"?
If a workman drives his employer's automobile for a couple of years until he wears the tires down to the inner tubes and suddenly a tire "blows out" and the car goes into the ditch and kills the workman, no one doubts but that an "accident" has occurred, although the rocks bad been grinding on that tire for a couple of years. Now if silica dust grinds on a workman's lungs for many months, developing latent tuberculosis until his lungs give out (blow up) and he dies, is there any material difference in "the time, place and circumstances" of the accidents? Is not the one as much an "accident" as the other?
We are not unmindful of the fact that the words "injury" and "accident" are not synonymous terms as used in the statute under consideration. The facts of this case require a recognition of the distinction in meaning of these two terms. In the circumstances confronting us here it is not thought essential to a decision of the case that the court assert or attempt to decide just when and where the injury and result both merged into a consummated "accident." (In re Larson,48 Idaho 136, 279 P. 1087, and cases cited.) All accidents are preceded by a cause, — in some cases that cause may have operated instantaneously and in others it may have been operating for days, months or years and ultimately the "accident" occurs, — the "blow out" (or "blow up") happens. A workman works on a given job for years *Page 296 where he regularly has to lift a considerable weight; in the course of time his heart grows weaker and eventually he lifts a similar load and his heart fails and he dies; and the experts tell us that he overstrained himself in lifting the load, and we say it was an accident arising out of his employment. (In re Larson, supra.) Or it may impair or rupture some other part of the body so that the final effort at labor accomplishes the breakdown, and still we say it was an "accident." (Hansonv. Independent School District 11-J, 50 Idaho 81, 294 P. 513.) How different are such cases in principle from the one under consideration here?
In the case last above cited this court quoted with approval from Springfield Dist. Coal Min. Co. v. Industrial Com.,300 Ill. 28, 132 N.E. 752, the following:
"If there is a pre-existing disease, the employee is entitled to recover for all the consequences attributable to the injury in the acceleration or aggravation of such disease. Suchaggravation or acceleration, permanent and progressive in itsnature, will entitle the employee to compensation to to the extent and in the proportion in which the pre-existing disease is increased or aggravated. Mere predisposing physical condition does not affect the right to compensation. If an accident results in a lesion or a new condition of which it is the proximate cause, there may be a recovery of compensation for the same, regardless of predisposing conditions making the employee more susceptible to the injury." (Italics ours.)
This court long since held that the Workmen's Compensation Act "is to be liberally construed with a view to effect its object and promote justice. . . . . It shall be so construed as to carry out its purpose and, so far as is reasonably possible, secure its benefits to all those who were intended to receive them." (McNeil v. Panhandle Lumber Co., 34 Idaho 773,203 P. 1068.) That rule has been consistently adhered to from the time it was announced down to the present time. (Page v. StateInsurance Fund, 53 Idaho 177, 22 P.2d 681; Riley v. City ofBoise, 54 Idaho 335, 31 P.2d 968.) *Page 297
The federal court in considering cases under this statute is bound by the construction placed upon the statute by the highest court of the state. In recognition of that rule, after an analysis of our decision, the Circuit Court of Appeals for the Ninth Circuit in Sullivan Min. Co. v. Aschenbach, 33 Fed. (2d) 1, has said:
"In harmony with the conclusions reached in these cases, we infer it to be the view of the Idaho Supreme Court that to be accidental in contemplation of the Compensation Act it is not a prerequisite that the injury result from a sudden or violent cause or that the cause or agency be accidental or unexpected, but, as expressly stated by that court, 'a workman may be said to receive a personal injury by accident arising out of and in the course of his employment when, from the operation of known and usual causes, he receives an injury, neither expected nor designed.' The contention that to be accidental, the injury must result from a single, sudden occurrence was definitely rejected. Said the court: 'Now if the single pressing of the knee against the lever and the single striking of the knee by the lever would result in an injury by accident, can we say that the injury actually received was not caused by accident merely because there was a continuation of the cases that brought on the injury? The statute does not restrict compensation to an injury that results from a single event, and there would seem to be no sound reason for holding that an injury occasioned by a number or series of events is not within the act.' "
There are very few absolute certainties in damage litigation. (Adams v. Bunker Hill etc. Min. Co. 12 Idaho 637, 89 P. 624, 11 L.R.A., N.S., 844; Riley v. City of Boise, 54 Idaho 335,31 P.2d 968.) As said by Mr. Justice Cardoza in Lewis v.Ocean Accident Guarantee Corp., 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129):
"Here, as elsewhere, the law contents itself with probabilities, and declines to wait for certainty before drawing its conclusions." *Page 298
So here we must act upon the most rational view that we can obtain of the case. In the light of our analysis of the facts and circumstances bearing upon the injury here involved, and the uniform purpose of this court to apply the law with a liberal construction in favor of compensating the injured workman, we are constrained to hold that in the case at bar the workman met with an "accident" in the course of his employment and was entitled to compensation.
Adverting again to the findings and conclusions of the Industrial Accident Board, we call attention to the fact that this is not a case where we have examined and weighed the evidence to determine its preponderance, but have rather reached the conclusion that there was no substantial evidence to support the findings of the board as hereinabove set out, and that as a conclusion of law, which the finding really amounted to, it was erroneous. The conclusion should have been reached that an accident occurred. What we have already said herein renders it unnecessary for us to discuss other questions presented by the petition and briefs.
In view of the conclusion we have above reached with reference to the evidence, it is clear that the board should have found in favor of the claimant, and for these reasons the judgment is reversed with directions to make findings of fact and conclusions of law in accordance with this opinion, and to remand the case to the Industrial Accident Board with instructions to enter judgment in favor of the claimant.
Costs awarded to appellant.
Budge and Holden, JJ., concur.
Givens, C.J., concurs in the conclusion reached.