Brodin's Case , 124 Me. 162 ( 1924 )

Philbrook, J.

This is a Workman’s Compensation case coming up on appeal by the State Highway Commission in whose employ the claimant was engaged when he suffered the conditions for which he claims compensation.

Briefly stated, the record discloses that the claimant while thus employed was paid daily wages and in addition thereto was furnished board and lodging by the Coinmission at a camp located near the road which was then in process of construction under the direction of the Commission. The water which was supplied by the Commission for use at the camp was taken from a nearby spring and brooks. Brodin drank the water and became ill with typhoid fever which incapacitated him for labor. Because of this incapacity he claims compensation. In allowing his claim the Chairman of the Industrial Accident Commission made distinct findings of fact and law.

Finding of Fact.

The Chairman found as a matter of fact that the claimant contracted typhoid fever from using the water furnished him by the State Highway Commission, while in its employ, and that as a result of said injury he was totally incapacitated from labor for a certain period of time. This decision upon a question of fact, in the absence of fraud, is final. Public Laws 1919, Chap. 238, Sec. 34. Moreover, the State Highway Commission neglected to file the answer required by Public Laws, 1919, Chap. 238, Sec. 32. “If no answer is, filed no facts will appear to be actually in dispute although the petitioner may apprehend, and so state in his petition, that a dispute exists; and the Chairman in proceeding upon the petition may treat The allegations of fact which are well pleaded in the petition as admitted, and may make such award as the facts so stated in the petition will support, after the analogy of the procedure upon bill's in equity taken pro confesso for want of appearance or answer.” Morin’s Case, 122 Maine, 338. For these reasons, and because the record sustains the finding of fact, we are not justified in disturbing this finding.

Finding of Law.

The Chairman found as a matter of law that the typhoid fever so contracted is a personal injury by accident arising out of and in the course of the claimant’s occupation and is therefore compensable. Upon appeal this court may reverse or modify the decree, from which appeal is taken, but such reversal or modification must be based upon an erroneous ruling or finding of law. Public Laws, 1919, Chap. 238, Sec. 34.

The appellant urges that the finding of law in the case at bar is erroneous. It says that the sole question is whether the claimant sustained a “personal injury by accident” within the terms of the Maine Workmen's Compensation Act. It demands a negative answer to this question on the ground that there was in fact no outside, visible, causative accident, or, in other words, that the typhoid fever from which the employee suffered had no traumatic origin. It categorically claims that under our compensation statute, in the absence of an outside, visible, causative accident, or one of traumatic origin, the disease of typhoid fever is not compensable.

At the outset it should be clearly stated that the record in this case does not disclose that the employee suffered from an occupational disease, nor from an incipient or existing disease which was aggravated by exposure, strain, or other impelling circumstance's. Discussion of these elements, therefore, is not necessary. Nor are we called upon to say whether the injury arose out of and in the course of the employment. Upon these points the appellant issues' no challenge. Referring again to its brief, the sole question is whether the claimant sustained a “personal injury by accident.”

In searching the authorities upon this point we recognize that the provisions of the British Workman’s Compensation Act find place more or less completely in the various legislative acts in this country, and hence the English decisions upon disputed questions are entitled to great respect. It should be further noted that in six States of our Union, viz., Arkansas, Florida, Mississippi, Missouri, North Carolina and South Carolina, there are no compensation laws, so that the courts of those States afford us no aid. In the remaining forty-two States, and in the Federal Act, there are differences in provisions as to injuries which are compensable, depending upon whether the injury-was or was not “injury 'by accident” or “accidental injury,” or whether the “accidental” element is omitted from the act. In twenty-nine States, including Maine, the injury must be “by accident” or “accidental” in order to be compensable. In the remaining thirteen, as well as in the Federal Act, the words “accidental” or “by accident” do not appear.

We, therefore, face the inquiry whether, under the facts in this case, the employee as a matter of law, is entitled to compensation because of a personal injury by accident; or, stating the question in another way, may the disease in this case, not occupational, be said to have arisen from an accident. Hence, the interpretation and application of the words “accidental” or “by accident” must govern in the settlement of this question. The courts are not in harmony as to this interpretation. Obviously it will be impracticable, within the limits of this opinion, to discuss all the cases on one side or the other. We shall cite only what we deem to be leading cases.

For a definition of the word “accident” we content ourselves with that already adopted by our own court. “As defined by lexicographers, an accident is a befalling; an event that takes place without one’s forethought or expectation; an undesigned, sudden, and unexpected event. Its synonyms include mishap, mischance, misfortune, disaster, calamity, catastrophe.” Patrick’s Case, 119 Maine, 510, where much attention is given to a definition of the word. “By all authorities an occurrence to be accidental must be unusual, undesigned, unexpected, sudden.” Brown’s Case, 123 Maine, 424. In the latter case the court said “The word is commonly predicted of occurrences external to the body, e. g., wrecks, explosions, collisions, and other fortuitous mishaps in the world of things about us.” But neither in these cases, nor in any case, has our court declared as a positive and general rule that a fatal disease, not occupational, nor one pre-existing and aggravated by exposure, strain, or other impelling circumstances, is non-compensable, unless preceded by and growing out of a traumatic injury.

Ferris v. Eastport, 123 Maine, 193, relied upon by the appellant, is easily distinguished from the case at bar. That is a case where a member of a fire company became suddenly drenched with slush from the roof of a burning building, contracted a cold, which was followed by pneumonia, and incapacity for work resulted. The court denied compensation, stating as a conclusion, “It cannot be said to be unusual, or unexpected, or untoward, or unforeseen, that firemen get wet in- winter as well as in summer. On the contrary it would be unusual if they did not, each in their turn, get wet. Other firemen were wet at the same time and from the same causes. Can it be said that such occurrences are accidents? We think not under the act.” Thus it will be seen that in the Ferris Case there is lacking the very essence of the definition of “accident” given in Brown’s Case, supra, viz., “unusual, unexpected.”

Ballou’s Case, 121 Maine, 282, is one where a workman, while escaping from a burning mill, inhaled flame, smoke and gas, that produced a condition in the lungs which later resulted in pneumonia and death. Compensation was allowed. In that case no attempt was made to define “accident,” but the court held that the evidence showed a line of symptoms, never before present, which continued .to afflict the deceased to a greater or less degree from the time of the fire until his death by pneumonia; and further held that there was evidence to show a direct, causal relation between the fire and the death of the decedent..

Larrabee’s Case, 120 Maine, 242, is one where an employee, while removing ashes from under the boilers in a mill, breathed gas fumes from the ashes. Bronchial pneumonia developed and death followed. The evidence disclosed that the deceased was a man in good health who had never had any illness prior to the day of the alleged injury except from ordinary “colds.” Our court referred to the case as one where “the deceased, through accident, inhaled an excessive amount of the gases.” Here, also, no attempt was made to define “accident,” nor was any traumatic cause ascribed, but compensation was allowed.

It may be safe to say that among English cases which deal with an interpretation of the expressions “accidental injury” and “injury by accident” no one is more frequently cited than Fenton v. Thorley, A. C., (1903), 443. This case was considered after Parliament amended the Workman’s Compensation Act of 1897 which act is entitled “An Act to amend the law with respect to compensation to workmen for accidental injuries suffered in the course of their employment.” The first section of the Act, Sub. 5, 1, declares that if in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman “his employer shall be liable to pay compensation.” Lord Macnaghten comes to the conclusion that the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed. Lord Shand said also that the word ‘ ‘accident” in the statute is to be taken in its ordinary and popular sense, and thought that it denoted or included any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence. It was also pointed out that cases were numerous depending upon policies of insurance intended to cover injuries described as arising from accidental, violent, and external causes, but Lord Macnaghten said these cases did not throw much light upon the pending question because they turned on the meaning and effect of stipulations for the most part carefully framed in the interest of the insurers. No one of the learned expounders of the law in that case even hinted that an injury must have a traumatic origin in order to entitle the injured employee to compensation. On the contrary the effect of the interpretation in that case found an echo in a case decided two years later by the same tribunal.

Brintons v. Turvey, A. C., (1905), 230; 2 American and English Annotated Cases, 137. In the latter case a workman contracted anthrax while engaged in handling wool in the course of his employment. He was awarded compensation. Lord Macnaghten, abiding by the definition of “accident” in Fenton v. Thorley, supra, said ‘ ‘it was an accident that the noxious thing that settled on the man’s face happened to be present in the materials which he was engaged in sorting. It was an accident that this noxious thing escaped the down draught or suck of the fan which the Board of Trade, as we are told, requires to be in use while work is going on in such a factory as that where the man was employed. It was an accident that the thing struck the man on a delicate and tender spot in the corner of his eye. It must have been through some accident that the poison found entrance into the man’s system.....I cannot doubt that the man’s death was attributable to personal injury by accident arising out of, and in the course of his employment. The accidental character of the injury is not, I think, removed or displaced by the fact that, like many other accidental injuries, it set up a well-known disease which was immediately the cause of death.” Judgment was favorable to the injured employee. Examination of the cases decided by the English Court during the twenty years which have intervened since the decision of Fenton v. Thorley, supra, has not disclosed any reversal of the position there taken. Certainly there has been no intimation that an accidental injury must have a traumatic cause in order to render it compensable under the British Workman’s Compensation Act.

Before leaving the English Courts it is proper to again remark that in that country, as well as in our own, we find many cases arising from accident insurance policies. These policies usually insure the policy holder against injuries sustained through external, violent and accidental means. The accident insurance cases have to do with a contract and the intention of the parties; the cases under a compensation act deal with the intent of the legislative body.

Nor should we overlook cases like Steel v. Cammell, Laird & Co., 1905, 2 K. B. 232, a lead poisoning case. It was there held that a disease which is the result of a long continued process of absorption of a poisonous substance into the system is not an accident. The grounds on which this holding was placed are two-fold, one that notice of the injury could not be given because the time at which the injury occurred could not be fixed; the other that the disease was a consequence of the employment engaged in and was naturally expected to result in some instances. These cases do not bear upon the case at bar. They fall within the line of occupational disease cases. Such diseases lack the element of “sudden, unexpected event.” Patrick’s Case, supra.

Coming to courts in our country, cases are multitudinous and rapidly increasing where decisions have been rendered alone upon the phase of the various Workman’s Compensation Acts now under consideration. We must content ourselves by citing only a few of the leading cases.

Vennen v. New Dells Lumber Co., (Wisconsin), 154, N. W. 640. The act in that State, Sec. 2394-3, provides that liability for compensation shall exist against an employer for any personal injury accidentally sustained by his employee. The defendant supplied drinking water to its employees for their use while on the premises. The water so supplied became infected with typhoid germs. Vennen drank the water during the hours and on the premises when and where he was employed. Death from typhoid fever ensued. The defendant urged that the contracting of typhoid fever under the facts and circumstances of that case did not show that his death was due to an accidental occurrence. But the court said: “The term ‘accidental,' as used in compensation laws, denotes something unusual, unexpected, and undesigned. The nature of it implies that there was an external act or occurrence which caused the personal injury or death of the employee. It contemplates an event not within one’s foresight and expectation resulting' in a mishap causing injury to the employee. Such an occurrence may be due to purely accidental causes or it may be due to oversight and negligence. The fact that deceased became afflicted with typhoid fever while in defendant’s service would not in the sense of the statute constitute a charge that he sustained an accidental injury, but the allegations go further and state that this typhoid affliction is attributable to the undesigned and unexpected occurrence of the presence of bacteria in the drinking water furnished him by the defendant as an incident to his employment. These facts and circumstances clearly charge that Vennen’s sickness was the result of an unintended and unexpected mishap incident to his employment. These allegations fulfill the requirement of the statute that the drinking of the polluted water by the deceased was an accidental occurrence while he was performing services growing out of and incidental to his employment.

Wasmuth, Endicott Co., v. Karst (Indiana), 133 N. E., 609. The act in that state, as amended in 1919, Sec. 76-d, provides that “injury” and “personal injury” shall mean only injury by accident arising out of and in the course of the employment and shall not include a disease in any form except as it shall result from the injury. Karst was employed in the factory of the company. The company furnished its employees, while at work, with drinking water from a well in its factory. The wafer became contaminated with typhoid germs. Karst, while working for the company, used the water for drinking purposes, without knowledge of its pollution, thereby contracting typhoid fever, and was confined to his bed for several weeks. In considering the contention whether Karst received a personal injury by accident the court said, “This Court, in determining questions of liability under the Workman’s Compensation Act has adopted the following definition.

“An accident is any unlooked-for mishap or untoward event not expected or designed. ' Applying this definition to the facts disclosed by the evidence in this case, it is clear that the entering of typhoid germs into appellee's intestines, by reason of drinking the polluted water furnished him by appellant for that purpose, while in its employ, may rightfully be termed an accident.....Did the disease result from an injury by accident, arising out of and in the course of the employment? If it did not, by the express provision of the statute no compensation can be awarded. The injury, however, need not be produced by violence, as our statute, unlike those of some other states, does not so provide. It suffices in that regard, whatever the accident may have been, if it produced a lesion or change in any part of the system which injuriously affects any bodily activity or capability.....The fact that the accident involved in this case occurred while appellee was engaged in quenching his thirst, rather than in the actual performance of some duty which he owed appellant under his employment is not a matter of -controlling importance as it is recognized that such acts as are necessary to the life, comfort and convenience of the workman while at work, though personal to himself, and not technically acts of service, are incidental to the service; and an accident occurring in the performance of such acts is deemed to have arisen out of the employment.”

Fidelity &c. Co. v. I. A. C. of California, 171 Pac., 429. This case arose under the so-called Boynton Act as it stood in 1914 where under Section 12 of the act it was provided that compensation should be granted for personal injuries by accident arising out of and in the course of the employment. The record shows that while using wood alcohol for cleaning purposes the eyes of the employee were exposed to and came in contact with the vapor of alcohol in unusual quantities causing sudden impairment of vision. It was held that this was not an occupational disease and that compensation should be awarded. Insurance cases were there discussed but the court held that the expression “injuries sustained by accident” in the Compensation Act is to be given the broader interpretation in harmony with the spirit of liberalty in which it was to be conceived, so as to make it applicable to injuries to workmen which are unexpected and unintentional and which thus come within the meaning of the term “accidents” as it is popularly understood, citing the British cases which we have above cited.

Other cases supporting the doctrine that traumatic injuries need not be requisite to compensation for injured workmen are found in many states.

On the other hand in Richardson v. Greenburg, (decided in 1919), 188 App. Div. 248, 176 N. Y.; supp. 651, the court said:

"Had it been the intention of the legislature to include within the meaning of ‘injury,’ or ‘personal injury’ all diseases of whatever nature, it would not have been necessary expressly to mention, in addition to ‘accidental injuries,’ ‘such disease or infection as may naturally and unavoidably result therefrom.’ This express mention of a disease which is the consequence of injury would seem to exclude all diseases which are not. The particular disease must ‘result’ from ‘accidental injury,’ that is to say, it must be preceded by such injury, and therefore cannot constitute the injury, which it follows. Evidently ‘disease.’ and ‘accidental injury’ are in contrast with each other, so that the former is never comprehended by the latter. The Workman’s Compensation Law was drawn with painstaking care, and it cannot be supposed that words and phrases found therein, particularly in the defining clauses, were needlessly, meaninglessly, or obscurely used. The plain meaning of its words, without the aid of judicial interpretation, induces the conclusion that the legislature intended to make compensable no condition or death resulting from disease, unless the disease itself followed a traumatic injury or other injury not partaking of the nature of a disease.” In this case death was caused by the disease of glanders contracted through inhalation of the bacteria of glanders and the court, holding that the death did not result from an accidental injury, denied compensation.

The position taken by the New York Court is also supported by decisions in other jurisdictions, which are entitled to great consideration, holding that compensation is not authorized where incapacity results from disease, such as pneumonia, Linnane v. Aetna Brewing Co., 91 Conn., 158; Landers v. Muskegon, 196 Mich., 750, 163 N. W., 43; or typhoid fever, State v. District Court, 138 Minnesota, 210, 164 N. W., 810. But in the majority of jurisdictions, and we think by weight of authority, it has been held that the phraseology of the compensation acts is broad enough to include all non-oecupational diseases although not preceded by traumatic causes provided it is clearly shown that the disease arose out of and in the course of the employment and was unusual,, undesigned, unexpected and sudden. Ann Cases, 1918 B., 328; Vennen v. New Dells Lumber Co., supra; Glasgow Coal Co. v. Welsh, 1916, 2 A. C.; Brintons v. Turvey, supra.

We hold, therefore, that in the case at bar, from weight of authority and by reason of the humane and liberal construction to which the Compensation Act is entitled the mandate must be,

Appeal dismissed with costs.

Decree below affirmed.